Because certain family based petitions have priority dates that take over a decade to become current, many parents worry about their children “aging out” before there is a visa available for them and wonder if the Child Protection Act will protect their children.
For immigration purposes a “child” is defined as an individual who is unmarried and under the age of 21
Before the Child Protection Act (CSPA) took effect on August 6, 2002, a beneficiary who turned 21 at any time prior to receiving permanent residence could not be considered a child for immigration purposes. This situation is described as “aging out.” Children who “aged out” were no longer eligible for the intended immigration benefit.
The Child Protection Act altered when and how a child would be considered to have “aged out” in the visa petition process. This article will discuss two specific circumstances:
- When the child is the son or daughter of a US citizen
- When the child is a son or daughter of a legal permanent resident who naturalizes
- Other children
Child of a U.S. Citizen
The son or daughter of a U.S. citizen will not “age out” as long as the petition Form I-130 was filed before the child turned 21. This is often referred to as “freezing”; in other words the child’s age halts for immigration purposes. For example: U.S. citizen father properly files Form I-130 on behalf of his son who is 5 months shy of turning 21 and the adjudication of his petition takes 8 months causing him to “age out” — in this case the child is protected by CSPA because his age “froze” at the time Form I-130 was filed when still 20 years old.
Child of a Legal Permanent Resident Who Naturalizes
Furthermore, where a legal permanent resident has filed a petition for his child and he subsequently naturalizes prior to the child “aging out,” that child is also protected by CSPA. That child’s age will also “freeze” at the time the legal permanent resident father naturalizes. However, this only applies to a child whose petition was first filed based on being the child of a legal permanent resident who subsequently naturalizes.
Other Children: Derivatives
While the first two categories were straight forward, the next category is much more complicated requiring careful analysis. “Other” children’s age is determined by taking the age of the child at the time the immigrant visa number becomes available reduced by the time a properly filed I-130 petition was pending. Additionally, to qualify the child must file for legal permanent status within one year of the approval of the petition.
Let’s look at an example: John, a U.S. Citizen filed an I-130 petition on behalf of his sister Penny. At that time Penny had a son Adam who was Penny’s derivative in the application. The I-130 was approved exactly one year after it was properly filed and received. Sixteen years later, the priority date became current—meaning a visa number became available. Unfortunately, a few days before the visa number became available, Adam had turned 21. Thankfully, CSPA applies to Adam’s case. Even though Adam had already turned 21, CSPS allows him to subtract the time a petition was pending from his current age at the time a visa number became available. In this case the I-130 was pending 1 year from the time it was received until the time it was approved. Thus, Adam is considered to still be 20 years old and a qualified derivative eligible for an immigrant visa.
Most cases are much more complicated than Adam’s and require an in depth analysis of dates. Consequently, it is best to consult with an experienced attorney who can evaluate the particulars of your case.