The Child Status Protection Act (CSPA) is commonly known for preventing children from “aging out.” In other words, even if a derivative beneficiary was under 21 when they were included in the petition, and then they turned 21 during the lengthy processing period, the law enables them to retain their eligibility as a derivative child. For instance, in employment-based green card or family-based petitions (including petitions by U.S. citizen children), a principal applicant’s derivative child must remain unmarried and under 21 to be eligible for a green card (or visa). If a case is pending for an extended period, it’s easy for the child to surpass age 21.
Now, consider a scenario where a child under 21 is petitioned as the minor child of a lawful permanent resident (LPR), but then crosses age 21 by the time the parent becomes a U.S. citizen. Does the child simply become an adult child of a U.S. citizen (F1), or can they, under the CSPA, still be considered the minor child of a U.S. citizen—that is, an “immediate relative”? Being treated as an immediate relative not only affects whether one has to wait for a priority date, but also whether one can apply for a green card despite unlawful presence. In other words, it can be more serious than one might think.
No direct provision in the Immigration and Nationality Act addresses this situation. For unmarried adult children of LPRs (F2B), the law explicitly provides an “opt-out” regulation allowing them to remain in F2B status even if the parent naturalizes. But there is no similar guidance about whether an F2A child can convert to immediate relative status once the parent becomes a U.S. citizen.
Until now, USCIS has maintained that if a child in F2A status reaches 21 and then the parent naturalizes, the child’s category changes to F1, meaning an adult child of a U.S. citizen. The Board of Immigration Appeals (BIA) and USCIS have interpreted the CSPA as supporting this approach.
However, a recent decision by the Ninth Circuit Court of Appeals diverged from USCIS’s interpretation. (Tovar v. Sessions, No. 14-73376 (9th Cir. February 14, 2018)). According to this ruling, the child still benefits from the CSPA, effectively preserving minor-child status, which would make them an immediate relative of the U.S. citizen. In other words, the court recognizes the individual as a “minor child” under CSPA rules.
The court held that a child’s age should be considered not only in terms of actual years but also the “legal” age calculated under the CSPA. It also reasoned that the law does not provide an “opt-out” provision for F2A like it does for F2B because, in the case of F2A, beneficiaries are intended to convert automatically to immediate relative status once the parent naturalizes.
If a child “ages out” into the F1 category, they face a much longer waiting period. Moreover, if the child has no valid immigration status while waiting, things can become even more complicated. So it is fortunate that there may be a way to avoid this predicament.
Under the CSPA, you calculate the “CSPA age” of the F2A child using the statute’s formula; if that calculated age is under 21, the child qualifies as an immediate relative. Thus, even after the parent’s naturalization, the child may remain in the immediate relative category if their CSPA age is under 21.
Unfortunately, because this ruling comes from a federal circuit court (the Ninth Circuit), it does not automatically apply nationwide.