For many years, families with children who were beneficiaries of immigrant visa petitions often worried that the children would “age out” or turn 21 years old before the immigration processing could be completed.
This changed in 2002 when Congress enacted the Child Status Protection Act (CSPA). This law was intended to mitigate the harsh impact that reaching the age of 21 had on the children’s eligibility for an immigrant visa. Under the CSPA, a child’s age can be fixed or locked according to certain rules. It is the CSPA age, and not the chronological age, that is used to determine whether the person remains a “child” for immigration purposes.
In a recent public teleconference the USCIS Ombudsman explained the different formulas on how the age is calculated depending on whether the person is the child of a U.S. citizen, the child of a green card holder, a derivative in the family- or employment-based categories, an asylee/refugee derivative, or a derivative based on the Violence Against Women Act (VAWA).
If the parent is a U.S. citizen, the child who is unmarried and under 21, as of the date of the filing of a Form I-130 relative petition by the parent, is considered an immediate relative and his/her age is “frozen”. As a result, the child does not age out and remains eligible for the immigration benefit applied for. Before the CSPA, the child would have lost immediate relative status and automatically moved to the first family preference category (F2A).
If the child under 21 is married at the time of the filing of the I-130 by the U.S. citizen parent, a subsequent divorce before turning 21 converts this child to immediate relative status which is preserved when he/she reaches 21.
On the other hand, if the parent is a legal permanent resident (LPR) who files an I-130 for an unmarried child under 21, but who subsequently naturalizes before the child turns 21, the child is converted to immediate relative status and this status is preserved when he/she turns 21.
In other cases of LPR parents, the child’s CSPA age is his/her “adjusted age” which is the biological age minus the number of days that the I-130 petition filed on the child’s behalf was pending before being approved by the USCIS.
If on the date the visa becomes available for his/her priority date the child is under 21 using the formula for “adjusted age”, the child’s family 2A status is preserved. The child has one year from the date of visa availability to seek to acquire permanent resident status.
The computation for children of LPRs is especially useful because children who reach 21 fall into the family 2B category, where the backlog is greater than in the 2A category where they would remain had they not aged out. The difference in waiting times between 2A and 2B currently varies from 4 years to 15 years, depending on the country of chargeability.
Using the CSPA formula, derivative children in the family-based categories will retain their derivative status upon reaching 21 if their adjusted age is less than 21 on the date of availability of the principal beneficiary’s visa.
Derivative children in employment-based categories will likewise retain their derivative status upon turning 21 if their adjusted age is below 21 on the date of the principal beneficiary’s visa availability. The time during which the I-140 petition was pending is subtracted from the children’s biological age to arrive at their adjusted age.
As in children of LPR parents who do not otherwise naturalize, family- and employment-based derivative children must seek to acquire permanent resident status within one year from the date that their priority dates become current.
This requirement of seeking to acquire LPR status has been interpreted to mean the filing of an I-485 adjustment application, DS-230 Part I, or I-824 application.