Child Status Protection Act
Is Your Child Eligible for Relief Sought?
Children adopted from other countries must first obtain a U.S. visa before they can travel or move to the United States. Visas are issued at the U.S. Embassy or Consulate in the foreign country where a child resides. Since a child being adopted abroad by a U.S. citizen parent(s) will usually be brought to live in the United States, that child will need an immigrant visa.
Child’s Eligibility
Children being adopted abroad must be found eligible to immigrate under the U.S. Immigration and Nationality Act (INA) in order to reside in the United States. Because adoption laws vary from country to country, it is sometimes possible to adopt a child abroad who does not qualify for immigration under U.S. law; such children cannot immigrate to the United States.
Under the INA, a child who is adopted abroad while under the age of 16 and who has been in the legal custody, and has resided with, his or her adoptive parent(s) for at least two years may be the beneficiary of a U.S. Citizenship and Immigration Services (USCIS) I-130 petition (Petition for Alien Relative) and receive an immigrant visa in the IR-2 category.
The Child Status Protection Act (CSPA) was signed into law on August 6, 2002. It was enacted in order to keep immigrant families united despite family-based and employment-based waiting times which can range up to 22 years or more.
Prior to CSPA, once a child turned 21 years of age, he or she “aged-out” and was no longer able to immigrate (or adjust status) along with his or her family. CSPA eliminates this problem by “freezing the age” of immediate relative children when their petitioning U.S. citizen parent submits a visa petition on their behalf; when a petitioning permanent resident parent naturalizes; or when a married son or daughter who has been petitioned by a U.S. citizen parent becomes divorced or widowed.
CSPA also creates a mathematical formula which allows the amount of time that a visa petition was pending to be subtracted from a child’s age.
What happens if a child “ages-out” despite the mathematical formula? Again, CSPA provides relief for “aged-out” children in the form of an automatic conversion clause. However, this subsection of CSPA is currently being litigated in the Federal Circuit Courts of Appeals.
CSPA is applicable not only to persons who were sponsored for permanent residence after the law took effect, but to many people who were sponsored for green cards prior to August 6, 2002. Therefore, it applies to hundreds of thousands of persons.
