The Child Status Protection Act (CSPA) permits certain beneficiaries to retain classification as a “child” for the purpose of becoming an immigrant, even if he or she has reached the age of 21 due to large backlogs and long visa processing times. 

A “child” is defined as an individual who is unmarried and under the age of 21. A child was considered as “aging out” when turning 21 at any time prior to receiving his or her permanent residence.  CSPA protects “child” status for family-based immigrants, employment-based immigrants, and some humanitarian program immigrants (refugees, asylees, VAWA).

In case where a petition Form I-130 (petition for Alien Relative) was filed by a U.S. citizen parent for his or her child, the child’s age “freezes” on the date of filing. Similarly, if a petition is filed by a permanent resident parent and he or she naturalizes before the child turns 21, the child’s age “freezes” on the date when the permanent resident parent naturalized. If a permanent resident petitioner filed the petition and then naturalized, the beneficiary child can choose to remain in the second preference classification instead of automatically converting to a 1st preference classification (Opt-Out) as it may be beneficial for the reason that sometimes the waiting time for the second preference visa is shorter than the waiting time for the first preference visa.  In both these situations, CSPA allows the time a visa petition was pending to be subtracted from the child’s biological age at the time of visa availability so that the applicant is not penalized for the time in which USCIS did not adjudicate the petition.

The child must be the beneficiary of a pending or approved visa petition on or after August 6, 2002. Also, a final decision must not have been made on the application for adjustment of status or an immigrant visa before August 6, 2002. Further, the child must “seek to acquire” permanent residence within 1 year of a visa becoming available (visa should have become available on or after August 7, 2011). USCIS interprets “seek to acquire” as having a Form I-824, Application for Action on an Approved Application or Petition, filed on the child’s behalf or the filing of a Form I-485, Application to Register Permanent Residence or Adjust Status, or submit Form DS-230, Application for Immigrant Visa and Alien Registration from the Department of State. The date of visa availability means the first day of the first month a visa in the appropriate category was listed as available in the Department of State’s visa bulletin or the date the visa petition was approved, whichever is later.

The DREAM Act (Development, Relief, and Education for Alien Minors) is a legislative proposal to legalize immigrant high school graduates of good moral character who were brought to the United States at a young age without legal status. The terms are simple: those who complete two years of college education or military service will be eligible for their green card (legal permanent resident status).

Immigrant students graduating high school in the United States without legal status have virtually no options. Legally, they cannot get a job. They cannot join the military. In most states, they cannot attend college. Moreover, most did not decide to enter the country illegally; their parents made the decision for them. The DREAM Act provides them with the option to remain in the country if they attend college or join the military.

 An applicant is eligible provided that he or she:  entered the United States before age 16 and are currently under 35; have been continuously physically present in the United States for at least five years prior to enactment; have a high school diploma or GED or have been accepted to college; demonstrate good moral character; is not inadmissible or removable for crimes or national security reasons; and was never under a final order of exclusion (subject to limited exceptions).

Members of Congress have introduced several forms of this bill in both the House of Representatives and the Senate. Members in the House passed one such bill on December 8, 2010 but in 2011 the Senate killed it.

Certain spouses, children, and parents of U.S. citizens and permanent residents (Green Card holders) are allowed to file a petition (Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant) themselves, without the knowledge of the abuser under the Violence Against Women Act (VAWA) provisions of the Immigration and Nationality Act (INA). VAWA provisions apply equally to both women and men. VAWA allows the battered spouse, children, and parents to seek both safety and independence from their abusers.

A spouse may include in the petition his or her unmarried children who are under 21 if they the children have not filed for themselves.  Certain eligibility requirements have to be shown by the spouse including being married to a U.S. citizen or permanent resident abuser or termination of marriage to abuser by death or a divorce (related to the abuse) within the 2 years prior to filing, other spouse losing or renouncing citizenship or permanent resident status within the 2 years prior to filing due to an incident of domestic violence, marriage was entered in good faith and was not solely for immigration benefits, residing with spouse, and being a person of good moral character.

The parent of a U.S. citizen may file on their own if his or her U.S. citizen son or daughter has abused them. One may also file on their own if he or she has an abused child under 21, unmarried and have been abused by his or her U.S. citizen or permanent resident parent.  The child also can file after age 21 but before age 25 if the child can demonstrate that the abuse was the main reason for the delay in filing. The child should show abuse, residence with abusive parent, relationship with parent, and evidence of good moral character if over the age of 14. In case of a parent, one should show he or she resided with the abusive son or daughter.

The approval of the I-360 petition does not provide legal immigration status in the United States. USCIS may place them in deferred action, which allows them to remain in the United States. In such cases, they may be eligible to apply to work in the United States for which they have to file Form I-765, Application for Employment Authorization.

Section 106(c) of The American Competitiveness Act for the 21st Century of 2000 (AC-21) allows a person who has submitted an Adjustment of Status (Form I-485) application and falls under one of the Employment-Based preference categories, he or she can change jobs and still adjust status. AC-21 portability provisions were created due to the lengthy adjudications for individuals facing visa retrogressions. 

Under AC-21, the new job should be in the same or similar occupation and the I-485 has been pending over 180 days from the date of its filing. The new job need not be in the same geographic location or the new job must pay same or higher salary. There is no requirement that a new labor certification be filed while moving to the new employer. Also, there is no requirement that the person should remain with their initial employer for 180 days or more after the I-485 is submitted. Form I-140 should have been approved or approvable when filed for AC-21 to be applicable.

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