Freezing child’s age for green card purposes (2)

Another “immediate relative” (IR) scenario under the CSPA, albeit less common, occurs when a US citizen files separate immigrant (Form I-130) petitions for a foreign spouse and the spouse’s minor child (“stepchild”).

Under the law, a US citizen is required to file separate petitions for the spouse and each minor stepchild because no derivative relationship exists under the IR category.

However, if the US citizen dies while the petition is pending, the petition is deemed extinguished by operation of law, with the exception that the petition filed on behalf of a surviving spouse (widow or widower) automatically converts to a self-petition (Form I-360) by operation of law.

The “automatic conversion” rule does not apply to surviving stepchildren, however.

Thus, prior to the CSPA, the petitioner’s death would, in most instances, doom a minor stepchild’s chance of getting a green card through a US stepparent’s immigrant sponsorship.

Thanks to the CSPA, however, the stepchild is now allowed to ride the coattails of the surviving parent’s self-petition, meaning the child would continue to be recognized as an IR stepchild, the child’s age being frozen at the time of the original petitioner’s death.

Thus, as long as the stepchild’s age is below 21 and remains unmarried at the time of the US petitioner’s death, the stepchild will always be classified as an IR “child” under the CSPA for green card purposes (with no visa quota restrictions).

Moving on to other scenarios, another situation impacted by the CSPA involves a case in which a child turns 21 while waiting for a petition filed on behalf of the child’s parent to become current.

In this instance, the child is considered a “derivative” beneficiary while the parent is deemed the principal beneficiary.

In situations of this nature, the CSPA freezes the child’s age on the date that a visa first becomes available for the underlying petition (“petition becomes current”) after subtracting the length of time that the petition is pending from the child’s age at that particular time, provided that the child takes steps to apply for an immigrant visa or adjust status to permanent resident within one year from the date of earliest visa availability.

To illustrate, Ms. Momsie, a married housewife from the Philippines, was petitioned by her US citizen father when her daughter (Childa) was only 5 years old.

It took the USCIS five years to approve the immigrant petition, when Childa was already 10 years old. Because of the severe visa oversubscription in the category of “married sons and daughters of US citizen” from the Philippines, another 13 years elapsed before a visa for the entire family became available. At the time, Childa was already 23 years old.

Under the old rule, Childa would have “aged-out” by then because she failed to immigrate to the US before her 21st birthday (not possible because a visa was not available).

However, under the CSPA, Childa’s age for green card purposes would have been frozen or locked in at 18. Why? Because the time it took the USCIS to approve the father’s petition for Momsie (five years) would have been subtracted from Childa’s age (23) at the time when a visa first became available.

Thus, as long as Childa takes steps to apply for an immigrant visa (if outside the US) or adjust her status to permanent resident (if inside the US) within one year from the time that a visa for the entire family first became available, Childa should be able to get a green card despite her biological age being over 21.

(To be continued)