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Does the Child Status Protection Act come into play automatically or must one somehow apply for it?

Phoenix, AZ |

My sister in law turned 21 last summer. Before which, her application for a green card based on my mother-in-law's residency status was received and approved, but no visa numbers were available. Now, my brother-in-law (who is 20 years old) just received notice of a visa appoinntment, but his sister did not. We assumed CSPA meant they would subtract the time that a visa number was unavailable from her age. Were we supposed to apply for something or did we misunderstand the Act?

Attorney Answers 3


  1. CSPA allows her to subtract the amount of time that the visa petition was pending from her age.

    (213) 394-4554 x0 Mr. Shusterman is a former INS Trial Attorney (1976-82) with over 35 years of immigration experience. His response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.


  2. For preference category and derivative petitions, the ‘CSPA age’ is determined on the date that the visa, or in the case of derivative beneficiaries, the principal alien’s visa, becomes available. The CSPA age is the result of subtracting the number of days that the immigrant visa petition was pending from the actual age on the date that the visa becomes available. If the ‘CSPA age’ is under 21 after that calculation, you will remain a child for purposes of the permanent residence application.

    Yes, she must apply for permanent residence within one year of the priority date being current.

    Law Offices of J Thomas Smith J.D., Ph.D 11500 Northwest Freeway, Suite 280 Houston, TX 77092 713-LAWYER-2 www.MyImmigrationLawyer.info NOTE: Responses are for the education of the community at large and is not intended to be "legal advice." No attorney-client relationship is established by responses or comments.


  3. You assumed wrong. The time that is subtracted is the time the I-130 was pending with USCIS. That time is subtracted from her age at the time the priority date becomes available. See link below.

    J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.

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