The biggest mistake in CSPA eligibility

The Child Status Protection Act (CSPA) provides “aged-out” protection for children who turn 21 years of age. For minor children of US citizens (IR), the formula and requirements are relatively simple and straightforward: the US citizen parent must file the petition before the child’s 21st birthday. CSPA eligibility is completed on the date of filing.

For all other family and employment-based petitions, determining eligibility can be confusing and complex, with many children losing out on CSPA eligibility because the family messed up and missed some of the requirements or deadlines.

For non-IR petitions, there is a two-step process for determining CSPA eligibility:

• Calculate the child’s age. This is done by subtracting the “processing time” of the operative petition (from the date of filing until the date of approval) from the child’s age when the priority date is current or visa is available. For example, if USCIS took one month to process and approve the petition, all you can subtract from the child’s age is one month. If USCIS took four years to process the petition, you can subtract four years from the child’s age.

• Seek to acquire a visa within one year. This is where most families mess up, resulting in the child losing CSPA eligibility and having to be left behind. Even if the child’s age is calculated to be under 21, if the family does not seek to acquire (or pursue) a visa on behalf of the child within one year of visa availability, then they missed the deadline and the child is out of luck. In other words, once the priority date becomes current, you have one year in which to seek to acquire a visa on behalf of the child to secure CSPA eligibility.

According to the Foreign Affairs Manual (FAM), there are several ways the child can seek to acquire a visa within one year of visa availability (or the priority date being current):

• Filing an application for an immigrant visa (Form DS-260) or payment of the DS-260 fee by the applicant/child. The filing of a Form DS-260 by a principal applicant does not satisfy the seek-to-acquire requirement for a derivative applicant.

• Filing an Application for Action on an Approved Application or Petition (Form I-824) on the child’s behalf. This typically occurs when the parent adjust status in the US and they plan that their children back home will “follow to join.” The parents should file their adjustment of status and the I-824 at the same time, and within one year of when the priority date is current.

• Filing an Application to Adjust Status (Form I-485) by the applicant, provided the child is in the US and eligible to adjust status. Filing adjustment of status for the parent does NOT satisfy the “sought to acquire” requirement. It must be on behalf of the child.

• Filing an Affidavit of Support (Form I-864) provided the child is listed on the Affidavit of Support. If an affidavit of support was submitted on behalf of the parent, but the child was not listed, then it would not meet the requirement.

• Payment of the Form I-864 fee to the National Visa Center (NVC), but only if the applicant is listed on the Affidavit of Support filed with the NVC at any time.

Any other actions, concrete steps or “extraordinary circumstances” that the consular officer believes may satisfy the seek-to-acquire requirement.

Also, you must be able to document eligibility in writing. Therefore, if you communicated with the embassy or NVC by email concerning the child, for heaven sakes, don’t delete those emails! The same with letters, forms, payment of fees, etc. Document your written contacts, versus saying, “I remember I called, but I don’t have any proof and I don’t remember when.”

The bottom line is that for CSPA eligibility, not only must the age be calculated to be under 21, but the family must also “seek to acquire” a visa for the child within one year of when the priority date becomes current. Otherwise, you’ve messed up CSPA eligibility. If you have a child turning 21 years old, or your child’s visa was refused because they aged out and you believe they are CSPA eligible, I would highly recommend that you consult with an attorney who could evaluate the situation and perhaps seek reconsideration of the refusal.

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