First you must take various steps to determine as to whether CSPA applies to the child, such as when the child’s age is frozen under CSPA, the age of child when the priority date becomes available minus the period of times taken by the U.S. Citizenship & Immigration Services (USCIS) in approving the petition, and whether the application for the immigrant visa, Form DS-230, was filed or the fee was paid for the child within one year, from the date when the visa became available.
In cases where the principal applicant (parent) adjusted status as a permanent resident, the parent should have filed Form I-824 within one year from the date the visa became available.
An alien who is the beneficiary of a visa petition or application filed on or before September 11, 2001, can deduct an additional 45 days under the CSPA calculations, to determine his/her age for the purposes of CSPA.
The Patriot Act grants such aliens 45 days extra in addition to the number of days that the petition was pending, and allows them to deduct this number from the age of the child for the purposes of CSPA.
Assuming CSPA applies, based upon the above-mentioned explanation, the determination of age of the child is made under various family- and employment-based categories.
For the children of U.S. citizens, the age of the child will freeze on the date of filing of Form I-130 and the child will permanently qualify as a child under Immediate Relative (IR) category as long as he/she does not marry.
Naturalization of a parent who filed a family-sponsored second immigrant visa petition for an unmarried child under the age of 21 would result in the child’s classification as an Immediate Relative even if he/she thereafter crosses the age of 21 years, provided the parent’s naturalization occurred while the age was below 21 years of age.
As indicated above, CSPA provides for the automatic transfer of preference categories when the parent of an unmarried son or daughter naturalizes, but also provides the unmarried son or daughter the ability to request that such transfer not occur.
If an unmarried son or daughter does not want such automatic transfer of preference categories to occur upon his or her parent’s naturalization, the Immigration Service (USCIS) shall accept such request in the form of a letter signed by the beneficiary.
If the beneficiary does make this written request to the Immigration Service (USCIS), then the beneficiary’s eligibility for family-based immigration will be determined as if his or her parent had never naturalized.
For unmarried sons and Daughters under the age of 21 of permanent residents, the age of the child should be calculated by taking the age of the child on the date that a visa first became available and subtract the time taken by USCIS to adjudicate the petition.
Dev B. Viswanath is principal attorney at The Banad Law Office.