What is...the Child Status Protection Act?

What is a child? Merriam-Webster Dictionary has several definitions, first though is "a young person especially between infancy and puberty." If you are parent to a child, then there is a very good chance that even when that person is beyond puberty, they are still your child. Unfortunately, U.S. immigration law has its own definition, with several exceptions added by the Child Status Protection Act ("CSPA"). If you like acronyms, then call it "cis-pah".

What is a Child?

First, the basic definition of a "child" under the Immigration and Nationality Act is...complicated. The overly simplified way to understand the definition - for the greater cause of understanding CSPA is the following three (3) basic types:

The term "child" means an unmarried person under twenty-one years of age who is—

• A child born in wedlock.
• A stepchild (born in/out of wedlock) if the stepchild-stepparent relationship happened before the child turned 18 years old.
• A child is legitimated under the law, if the legitimation happens before the child turns 18 years old & the child is in the legal custody of the legitimating parent or parents when the legitimation happens.

There are additional definitions of a "child" included in INA 101(b)(1), but they each have clauses and subclauses that unless they are specifically relevant to you will simply cause you brain-freeze without the comforting taste of ice cream.

Are you 21 or Married?

If you are a parent, you understand that your children are always your children whether they are old or young, single or married, or divorced. However, Uncle Sam and the INA do not have the same perspective.

If one of the following events occur, your baby ceases to be your child.

• Person who otherwise meets the INA's definition of a child turns 21 years old.
• Person who other meets the INA's definition of a child gets married, whether that marriage happens before, on, or after turning 21 years old.

If someone is under 21 years old and gets married but then gets divorced before reaching their 21st birthday, they can generally resume the status of a child. (Please be aware though that just like U.S. immigration law has a concept of marriage fraud, divorce fraud also is a thing notwithstanding its rarity).

What is this About Staying a Child After Turning 21 Years Old?

The CSPA became law on August 6, 2002 with eight sections to amend the INA's definition of a "child" under particular circumstances.

Section 1: Gave the law it's name.

Section 2: Specified that when a US Citizen sponsors a "child," the child stays at their age on the date the I-130 Petition is filed for them. The law includes two exceptions: (1) when the I-130 Petition is filed by a Green Card-holding parent who later becomes a US Citizen, then the sponsored child's status as a child depends on the date of the parent's naturalization. (2) If the child was married - meaning not a child under the INA - when the I-130 Petition was filed, but later got divorced, the age on the date of marriage termination determines their status.

Section 3: Unmarried Sons and Daughters of Family-, Employment-, and Diversity Visa-Based Immigrants can artificially reduce their age based on a formula tied to how long the sponsoring petition was pending. This section is a hotly contested provision that made its way all the way to the U.S. Supreme Court in Scialabba v. Cuellar de Osorio (2014), a decision that - in my humble opinion - is an example of gross judicial obeisance to an administrative agency. (Yes, I strongly believed and still believe that the Supreme Court's decision is unsustainable by the plain language of the CSPA.)

Sections 4 & 5: Allows continuing use of the "child's" age on the date the parent filed their asylum application or refugee application.

Section 6: Special rules were enacted for the sons and daughters of naturalized US Citizens who were first sponsored while their parent was a Green Card-holder. Based on the rules for the Green Card process, converting (or not) from being the son/daughter of a Green Card-holder to the son/daughter of a US Citizen may/not be helpful. This section addresses this problem with an opt-out provision to avoid the conversion.

Section 7 has some language that frankly I have never seen addressed, stating that "Nothing in the amendments made by the Child Status Protection Act shall be construed to limit or deny any right or benefit provided under this subparagraph."

Section 8 is the "Effective date" provision explaining when and how it goes into effect. For some years after CSPA was enacted it was being litigated until In re Rodolfo AVILA-PEREZ, 24 I&N Dec. 78 (BIA 2007), was issued resolving it in favor of the children whom the law was enacted to help. (Yes, I could go into more detail about the AVILA-PEREZ decision, but this is meant to be an overview.)

3 Take Home Messages!

This article is meant to give you a (hopefully) basic understanding of CSPA that anybody immigrating to the United States with children not born in the U.S. should be aware of. There are three take-home messages:

• Plan Ahead! Before your children get too old, if you are looking to stay permanently in the US, then talk to a lawyer about what you need to do (or not do).
• More is More and Less is Less. Each person who can file an I-130 Petition should. Unfortunately, the unexpected can and does happen to people and death of a petitioner will generally terminate a petition.
• Beware Premium Processing! If you are going to need to use the age-reducing formula in Section 3 of the CSPA, then a faster processing of your I-130 or I-140 may hurt more than help. (Diversity Visas are a different creature.)

There is always the important caution that this is not legal advice and may be considered advertising in some jurisdictions. However, it is always a good idea to check with a lawyer who knows their way around the INA and the CSPA for sound legal advice. Even the government gets it wrong sometimes.