The Child Status Protection Act (CSPA) provides age-out protection for certain children who turned 21 while waiting for their green card or immigrant visa. For children of non-citizens (such as derivative beneficiaries of their parentÕs employment or family based petitions, or minor children of immigrants), there is a two-step process: 1. Calculate the child's age based on a mathematical formula; and 2. The child must "seek to acquire" his or her visa within one year of when that visa becomes available (or priority date was current). If the child's age is calculated to be under 21, and the child has properly "sought to acquire" a visa within one year of visa availability, then the child's age is "locked in," and the child will remain eligible for benefits under the CSPA even after he or she turns 21 years of age. However, if their parent naturalizes after the child's 21st birthday, then the parentÕs naturalization destroys that child's CSPA eligibility. In other words, if a child is eligible under the CSPA, the parent should not naturalize after the child's 21st birthday. I know of many cases where a child was a derivative beneficiary of the parentÕs family or employment-based petition. The parent was able to adjust status, and lock in the child's age under the CSPA mathematical formula. While the child was in the midst of being processed for an immigrant visa, the parent became eligible for citizenship (because perhaps the parent received his or her green card more than five years ago), and the parent goes ahead and naturalizes after the child's 21st birthday. In that situation, the child would no longer be eligible for CSPA benefits because of the parentÕs naturalization. This is because, in most of these cases, the child's CSPA eligibility is based on the child being a "derivative" of the parentÕs petition, meaning they derive eligibility under the parentÕs original petition. Once the parent naturalizes, there's no more derivative status. The only time where it would be "safe" or beneficial for a parent to naturalize is if he or she can do so before the child's actual, physical 21st birthday. But once that child turns 21, the parentÕs naturalization could mess everything up. If you have a child who you believe is eligible for benefits under the CSPA and you, as a parent, are thinking about naturalizing, you should seek the advice of a reputable attorney to evaluate your situation before you take the oath of citizenship. If you go ahead and naturalize first and then asked an attorney if it was Òokay,Ó it may already be too late, and the damage cannot be undone.
Michael J. Gurfinkel has been an attorney for over 30 years, and is an active member of the State Bar of California and New York, as well as the American Immigration Lawyers Association and the Immigration Section of the Los Angeles County Bar Association. He has always excelled in school: Valedictorian in High School; Cum Laude at UCLA; and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California. WEBSITE: www.gurfinkel.com Follow us on Facebook.com/GurfinkelLaw and Twitter @GurfinkelLaw TOLL FREE NUMBER: 1-866-GURFINKEL (1-866-487-3465) Four offices to serve you: LOS ANGELES ¥ SAN FRANCISCO ¥ NEW YORK ¥ PHILIPPINES (This is for informational purposes only, and reflects the firm's opinions and views on general issues. Each case is different and results may depend on the facts of a particular case. All immigration services are provided by an active member of the State Bar of California and/or by a person under the supervision of an active member of the State Bar. No prediction, warranty or guarantee can be made about the results of any case. Should you need or want legal advice, you should consult with and retain counsel of your own choice.)