CSPA shock: My child was in diapers when the petition was filed, but aged out?!

Dear Attorney Gurfinkel:

In 2003, my sister petitioned me and my family. At the time, our eldest child was only six months old. Recently, we were called in for our interview at the US Embassy, but our eldest child was left off the list because she was already over 21 and had “aged out.” The consul said she did not qualify under the CSPA.

How is it that my child is not included under the petition since she was under 21 when the petition was filed? Why isn’t she covered by the CSPA?

Very truly yours,

J.J.

Dear J.J.:

The Child Status Protection Act (CSPA) is extremely complex and confusing when it comes to calculating a child’s age. Many people use the wrong dates or events when trying to figure out the mathematical formula and convince themselves that their child is eligible.

1. Age of child: Except for minor children of US citizens (immediate relatives), the age of the child when the petition is filed is not relevant to the CSPA calculation. It does not matter that the child was a baby when the petition was filed. What is important is the age of the child when the priority date becomes current. That is the age used for purposes of calculating the child’s age under the CSPA. (Note: for minor children of US citizens, the age of the child when the petition is filed is important, in that it must be filed before the child’s 21st birthday. But the other family and employment-based petitions use the age when the priority date becomes current.) In fact, I’ve had cases where the petition was filed one week before the child’s 21st birthday, and they wound up being qualified under the CSPA, and other cases where the child was in diapers when the petition was filed but was considered to have aged out.

2. Processing time of the petition: Under the CSPA, the processing time of the petition may be subtracted from the child’s age when the priority date becomes current. The processing time is calculated from the date the petition is filed until the date it is approved, even if the priority date becomes current many years in the future. For example, if a petition is filed and then approved one month later, the processing time that may be subtracted from the child’s age is