By: Beth Robertie, Esq.
The Child Status Protection Act (CSPA) was designed to lock in an age for dependent children, so that unmarried children who would otherwise be eligible for dependent benefits until they are 21 years old are not prevented from qualifying for these benefits because they “age out” due to Service center delays. In other words, in certain circumstances the CSPA operates to treat a child as if they are eligible for dependent benefits for immigration purposes even if they are older than 21.
However, in the case of employment-based immigrant visa applicants whose countries are currently retrogressed, the operation of this law is somewhat complicated. Although an alien beneficiary may hold an approved labor certification application and an approved I-140 petition, their child’s age is not locked in until their priority date is current, when they can file their I-485. Consequently, if a child is 18 at the time of the I-140 petition approval, but 23 at the time that the parent’s priority date becomes current, it is likely that they will age out. Under CSPA, the child’s age at the time that the priority date becomes current is reduced by the amount of time that the I-140 was pending with USCIS. However, this often provides limited relief. The current combination of faster I-140 processing times and extensive delays due toe retrogression, therefore, often deprives the unmarried child of an alien beneficiary the opportunity to take advantage of their dependent status. All too often, the children of green card applicants age out.
The bottom line is it is best for the parents of dependent children to start their green card cases as early as possible. It is all but impossible to predict the movement of priority dates, and the best way to minimize the risk is to get your applications started early.
CALIFORNIA : Fan, Fitzpatrick & Thompson, LLP.
370 E. Glenarm St., Pasadena , CA 91106
Tel: 626-799-3999 Fax: 626-799-9966
MARYLAND : Fan, Fitzpatrick & Thompson, LLP.
230 North Washington Street, Suite 400 , Rockville , MD 20850
Tel: 301-251-2636 Fax: 301-251-0313