The "Age Out" for a
Child Applicant Attained
1. For Most Nonimmigrant Statuses, the End Point for Children is 21
The Immigration and Nationality Act (INA) defines a “child” as an unmarried individual under 21 years of age. Children are generally eligible for a derivative status until 21 years of age. For example, a child with parents on H-1 status may remain in H-4 status until age 21. For these individuals, 21 is a more significant age than 18. For most nonimmigrant statuses, the end point for children is 21.
At that time, if the child wishes to remain in the U.S., she or he must secure and maintain his or her own status. This matter should be addressed well in advance of the 21st birthday, in order to plan ahead and take any needed action.
2. The "Age Out" Arises When Children Applicants Attained the Age of 21
The "age out" arises in some situations where children applicants apply for adjustment of status, consular processing, or naturalization. In many instances, alien children are eligible for immigration benefits if they are the children of U.S. citizen or permanent resident, or the children of a beneficiary to an immigrant petition. Under the immigration laws, a child is defined as an unmarried person under the age of 21.
In these situations, if children applicants or beneficiaries reach the age of 21 and the applications for adjustment of status or applications for immigration visa are still pending, they lose their eligibility for a Green Card which they would have had, had they not yet attained the age of 21. Thus, children who turn 21 years old before their applications for adjustment of status or applications for immigration visa are decided are "age out". As a result, they may not enjoy immigration benefits they originally petitioned for while they were still minors.
If a person filing for Green Card application is 21 or less and unmarried, he or she will be able to file as a child. However, if the child’s parents are legal permanent residents, not U.S. citizens, there is the danger of “aging out.” Even after the papers are filed for permanent residency, it can take many months or even years to officially register the adjustment of status. In the meantime, the person could turn 21, and no longer qualify as a child, thus “age out.” Now, he or she must start all over again to file as an adult.
Now, “age out” only applies to children of legal permanent residents, or Green Card holders, not children of U.S. citizens. The Child Status Protection Act (CSPA) mandates that a U.S. citizen can avoid aging out by filing Form I-130, Petition for Alien Relative. By using this form, you can “lock in” a certain time, with the person’s age at the time being the operative age.
3. The CSPA Holds Much Promise for Those Beneficiaries Who Reach the Age of 21
The Child Status Protection Act (CSPA) was enacted to provide relief to children who “age out” as a result of delays by the U.S. Citizenship and Immigration Services (USCIS) in processing immigrant visa applications. The Immigration and Nationality Act (INA) defines a “child” as an unmarried individual under 21 years of age. The CSPA does not change this definition, but instead changes the point at which the child’s age is calculated.
Prior to the CSPA, an application for permanent residency as a direct or derivative beneficiary child would be approved only if adjudicated prior to the child turning 21. Upon turning 21, a child would “age out” and lose the preferential status of a child. As the result of USCIS backlogs and delays, many children aged out before their cases were complete. For cases to which it pertains, the CSPA now locks in the age of the child at an earlier date in the process. In this way, it will preserve the status of “child” for many individuals who otherwise would age out.
The CSPA seeks to remedy this problem by changing the manner and time at which the child's age is determined and exactly when she or he ceases to be eligible for inclusion in the parents' case. The Child Status Protection Act became law on August 6, 2002. The CSPA holds much promise for those beneficiaries who reach the age of 21 before they are able to obtain the Green Card. Without the CSPA, a child is no longer eligible as a derivative beneficiary of a parent's case after reaching age 21.
4. The New Methods of Calculating a Child’s Age in an Immigration Application
Unmarried children are eligible for dependent benefits, including Green Cards, until they turn 21 years old. However, the CSPA locks in an age for dependent children. That is, the child is treated as being under age 21, for purposes of immigration benefits in certain circumstances, even though she or he is chronologically over 21 years. If the locked age is less than 21 for an unmarried child, that child is still permitted to obtain the Green Card as a dependent.
Under the CSPA, when a U.S. citizen parent petitions for the immigration of a child, the age of the child will be locked in as of the date that the parent files the I-130 Petition for Alien Relative. Thus, if a U.S. citizen father files an I-130 for his unmarried daughter when the daughter is 20, the daughter will retain the status of a “child” even if the visa petition or adjustment of status application is not adjudicated until the daughter is 22 years old.
The new method of calculating a person’s age varies depending on the type of immigration benefit that is sought. The CSPA applies to:
Children of U.S. citizens;
Children of Lawful Permanent Residents (LPR); and
Derivative beneficiaries of family-based, employment-based, and diversity visas.
When a U.S. citizen parent files a petition for a married son or daughter, and the son or daughter legally terminates the marriage while the petition is pending, the son or daughter’s age will be locked in on the date that the marriage is legally terminated. If under 21, the petition will be converted to an Immediate Relative petition.
5. How to Determine the Age of a Child of Permanent Resident in CSPA?
The process for determining the age of the child of an Legal Permanent Resident, or the derivative of a family-based, employment-based or diversity visa is more complicated. In these cases, the beneficiary’s age will be locked in on the date that the priority date of the visa petition becomes current, subtract the number of days that the petition is pending, but only if the beneficiary seeks to acquire the status of an Legal Permanent Resident within one year of the date the visa became available. This formula can be broken down into three steps:
First, determine the child’s age at the time a visa number becomes available;
Second, subtract from this age the number of days that the visa petition was pending; and
Third, determine whether the beneficiary sought Legal Permanent Resident status within one year of the visa availability date.
The first two steps will determine the child’s age. This age will only lock in, however, if the third step is met. The first step is to determine the child’s age at the time that a visa number became available for the child, or in the case of derivatives, when a visa number became available for the child’s parent. Both the USCIS and the DOS state that a visa number becomes available on the first day of the month that the DOS Visa Bulletin says that the priority date has been reached.
If the visa number is already available when the I-130 is approved, however, the agencies interpret the “visa availability” date for the CSPA as the date that the I-130 is approved. DOS rejected an alternate interpretation that a visa number is distinguishable from a visa, and that a visa number becomes available when the priority date becomes current, even if the visa itself is not available yet.
6. How To Calculate a Child's Age after a Permanent Resident Patent Naturalized to U.S. Citizen
To calculate a child's age after a permanent resident patent naturalized to U.S. citizen, it will involve conversion of a petition from a preference category to the Immediate Relative category. When an permanent resident petitions for a child under the F2A preference category, and the permanent resident naturalizes as U.S. citizen while the petition is pending, the age of the child will be locked in on the date of the parent’s naturalization. If the child is under 21 on that date, the petition will be converted to an Immediate Relative petition.
Under current law, an Legal Permanent Resident (LPR) parent’s I-130 petition filed on behalf of an unmarried son or daughter over 21 will automatically convert from second-preference 2B to first preference when the LPR parent naturalizes. The same is true if the child was under 21 at the time the I-130 was filed but later turned 21 before the LPR naturalized; the petition converts from 2A to 2B.
7. The Expedite "Aging-Out Process" for Child Green Card Application
If one of dependent child is about to reach 21 years of age and seeks immigrant status as the dependent beneficiary of either family-based or employment-based or for that matter, any other basis, it is the USCIS practice to take such case as the "top priority" case and expedite the process so that the green card applications for the entire family are adjudicated before the child reaches 21 years of age.
Consequently, not only the aging out child but also the parents and other siblings receive "expedite" processing and cases are approved in a fairly short period of time. This aging-out expedite process has been available in the USCIS. Currently, aging-out expedite works well in the family-based proceedings. Such aging-out expedite works at the USCIS local district office one-step I-130/I-485 proceedings. The USCIS district offices approves I-485 applications for the entire family members in the event that a child will reach 21 years of age in a few months.
8. The Child Status Protection Act (CSPA) and the Within One-Year Requirement
U.S. immigration law normally limits dependent or derivative status to children who are under 21 years of age. For U.S. permanent resident (Green Card) application, the Child Status Protection Act (CSPA) allows derivative benefits beyond the child's 21st birthday, if certain conditions are met.
Previously, a child who turned 21 years of age was no longer eligible to receive a Green Card as part of a parent's immigration case. This is true even if the child had aged out because of U.S. government's immigration processing delays. The Child Status Protection Act was intended to help alleviate this "chind aged out", and the Child Status Protection Act contains a formula for determining the child's CSPA age.
An important restriction to eligibility under the CSPA is the requirement that an applicant seeks to apply for U.S. permanent resident status within one year of an immigration visa becoming available. Therefore, to preserve the child's eligibility for immigration or U.S. Green Card, the child must apply for the U.S. immigration within one year of the time when the immigration visa for th child is considered to have become available.
The action that must be taken within the one year time period generally includes filing one of the following: an adjustment of status application (Form I-485), a following-to-join application (Form I-824), or an immigrant visa and alien registration application (DS-260).
The appropriate actions depend upon the location of the child. Any of these actions constitutes applying for U.S. permanent resident status, and it will suffice to freeze the CSPA child's age. Failure to take one of these actions within one year may result in loss of eligibility under CSPA for the child.
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