CSPA shock: My child was in diapers when the petition was filed, but aged out?!

Dear Attorney Gurfinkel:

In 2003, my sister petitioned me and my family. At the time, our eldest child was only six months old. Recently, we were called in for our interview at the US Embassy, but our eldest child was left off the list because she was already over 21 and had “aged out.” The consul said she did not qualify under the CSPA.

How is it that my child is not included under the petition since she was under 21 when the petition was filed? Why isn’t she covered by the CSPA?

Very truly yours,

J.J.

Dear J.J.:

The Child Status Protection Act (CSPA) is extremely complex and confusing when it comes to calculating a child’s age. Many people use the wrong dates or events when trying to figure out the mathematical formula and convince themselves that their child is eligible.

1. Age of child: Except for minor children of US citizens (immediate relatives), the age of the child when the petition is filed is not relevant to the CSPA calculation. It does not matter that the child was a baby when the petition was filed. What is important is the age of the child when the priority date becomes current. That is the age used for purposes of calculating the child’s age under the CSPA. (Note: for minor children of US citizens, the age of the child when the petition is filed is important, in that it must be filed before the child’s 21st birthday. But the other family and employment-based petitions use the age when the priority date becomes current.) In fact, I’ve had cases where the petition was filed one week before the child’s 21st birthday, and they wound up being qualified under the CSPA, and other cases where the child was in diapers when the petition was filed but was considered to have aged out.

2. Processing time of the petition: Under the CSPA, the processing time of the petition may be subtracted from the child’s age when the priority date becomes current. The processing time is calculated from the date the petition is filed until the date it is approved, even if the priority date becomes current many years in the future. For example, if a petition is filed and then approved one month later, the processing time that may be subtracted from the child’s age is one month. If it takes 20 years for the priority date on the petition to become current, all you can subtract from the child’s age is that one-month processing time. Many people mistakenly consider the processing time to be from the date the petition is filed until the priority date is current. That is wrong!

3. One-year sought to acquire requirement: Even if the child’s age is calculated to be under 21, there is also an important second step required, which is for the child to pursue or apply for their visa within one year from when the priority date becomes current. If they do not, they lose CSPA eligibility. This is usually accomplished by filing the DS-260, affidavit of support, adjustment of status, or other concrete step within one year of visa availability. I’ve come across many cases where the family overlooked this important step, such as when the parents decide that only they will go first and they will later bring their children as following to join. But they did not seek to acquire visas for their children within one year of visa availability, as they weren’t planning on bringing the kids now. Therefore, the children would not qualify under the CSPA.

In your case, although your eldest was under 21 when the petition was filed, she may have now “aged out.” Perhaps it could still be possible that she qualifies for benefits under CSPA, depending on the mathematical computation or formula for computing a child’s age, as outlined above (based on the length of time the petition was pending between filing and approval and subtracting that time from the child’s age when the priority date becomes current, and they seek to acquire the visa within one year).

However, I would suggest that you seek the advice of a reputable attorney, who can evaluate your situation and determine which family members are still eligible under your petition and if any of your children can benefit from the CSPA.

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