If you are bringing your child to the US under an I-130 (Petition for Alien Relative) petition, but they’re 21 when they don’t get their green card, things get more complicated. A child is someone who is under 21 in U.S. immigration law. Once they’re 21, they are no longer a “child” in the eyes of immigration. Which would be to apply for an alternative immigration status to remain in the US indefinitely.
Thankfully, Congress passed the Child Status Protection Act (CSPA) to avoid the situation whereby children “age out” of waiting long processing times. This is how it works.
What Is CSPA and How Does It Work?
The Child Status Protection Act (CSPA) was introduced to prevent the kids from growing old as they waited for their green card application to be approved. The CSPA literally “suspends” a child’s age at some point in the immigration process. It is significant as the immigration process can be years long, and without the CSPA children would “age out” and no longer count as the parent’s dependents.
CSPA holds a child’s age at the time his parent (a U.S. citizen or permanent resident) files the I-130 petition. Age is also tamped if the parent becomes a U.S. citizen while the petition is pending, or if the child is married but later gets divorced or widowed. This “refrigerated” age is the child’s CSPA age.
How is CSPA Age Calculated?
For children in some visa preference categories, CSPA age is computed by subtracting the time the I-130 petition was pending from the child’s age when the immigrant visa becomes available. This tweak is a step that makes sure the child doesn’t lose their ability to get in just because the system is slow.
To benefit from CSPA protections, the child needs to “try to get” permanent residence (i.e., apply for a green card) within a year of the visa number expiring. This means the child will still be considered a “child” when their CSPA age is under 21 and remain a child on the immigration timeline even if they have passed 21.
What Happens If CSPA Age Is Over 21?
If a child’s CSPA age later turns out to be 21 or older, they will typically be put into another preference category. For instance, if the child was previously in the family-based F-2B (for unmarried children of permanent residents), they might be transferred to a different category at age.
When the child’s parent becomes a U.S. citizen after age 21, the petition will be changed from F-2B to F-1 (first preference, unmarried children of U.S. citizens). However, it increases wait times because certain types of visas such as F-1 are subject to per-country caps — in other words, there are some countries with very long wait times because green cards are in great demand.
Meanwhile, F-2A (for spouses and minor children of permanent residents) has been current since the summer of 2019 – so there are much shorter wait times for this category.
It’s hard to figure out what CSPA means for your child’s immigration status if they ask you about your child’s age, type of petition, or when the petition was submitted. If your child is about to turn 21, or if you’re not sure what CSPA does for you, we recommend that you speak with an experienced immigration lawyer.
The Challenges of Aging Out Before a Green Card Is Issued
Aging out refers to the situation where a child turns 21 before their green card application is processed, resulting in the loss of eligibility to immigrate as a dependent child. This situation can arise from various circumstances and can lead to significant emotional and logistical challenges for families.
Common Scenarios Leading to Aging Out
Children may age out before receiving their green cards due to:
- Processing Delays: Long wait times for visa processing can cause children to turn 21 before their applications are finalized.
- Changes in Immigration Policy: Shifts in U.S. immigration laws or policies may extend processing times or alter eligibility requirements.
- Family-Based Petitions: Children of lawful permanent residents (LPRs) often face longer wait times compared to children of U.S. citizens, increasing the likelihood of aging out.
Emotional and Logistical Challenges
Families facing the aging-out dilemma encounter numerous challenges:
- Emotional Stress: The uncertainty surrounding immigration status can create anxiety and emotional distress for both parents and children.
- Logistical Complications: Families may need to navigate complex immigration processes, including filing new petitions or adjusting status, which can be time-consuming and costly.
- Disruption of Family Unity: Aging out can separate families, as children may no longer qualify to join their parents under family-based petitions.
Consequences of Aging Out
The consequences of aging out are significant:
- Loss of Dependent Status: Once a child turns 21, they are no longer eligible to immigrate as a dependent under their parents’ petitions. This change often requires them to seek alternative immigration pathways.
- Reclassification into Preference Categories: Aging out typically reclassifies the child into a different visa category, often leading to longer wait times for green card approval.
Possible Options for Children Who Age Out
Immigrant Visa Options
If a child ages out, they may apply for an independent immigrant visa:
- Self-Petitioning: Children can explore self-petitioning options, such as employment-based visas or other family-based categories if they qualify independently.
Derivative Status
Children who age out may still derive status from their parent’s green card petition under certain conditions:
- CSPA Protections: The Child Status Protection Act (CSPA) allows some children to retain “child” status even after turning 21 if specific criteria are met, such as timely application for permanent residency.
Adjusting Status Independently
A child who ages out has the possibility of seeking to adjust their status independently:
- Application for Adjustment: If eligible, they can file Form I-485 (Application to Register Permanent Residence or Adjust Status) even after turning 21.
Filing a New Petition
Families must navigate the process of filing a new petition if a child ages out:
- Steps Involved: This process involves submitting new forms and documentation, which can be complicated by changes in immigration laws or processing times.
- Potential Challenges: Families may face increased scrutiny from immigration authorities and longer waiting periods due to reclassification.
Seek Legal Counsel
Consulting an immigration attorney is crucial if a child is at risk of aging out:
- Expert Guidance: An attorney can provide personalized advice on navigating complex immigration laws and help families understand their options.
Impact of Aging Out on Different Visa Categories
Children of U.S. Citizens vs. Lawful Permanent Residents
The impact of aging out varies significantly depending on the child’s parentage:
- U.S. Citizens: Children of U.S. citizens generally have shorter wait times and more favorable options compared to those of LPRs.
- Lawful Permanent Residents: Children of LPRs often face longer processing times, increasing the risk of aging out.
Processing Times Between Visa Categories
Different family-based visa categories have varying processing times:
- Immediate Relatives vs. Preference Categories: Immediate relatives typically experience faster processing than those in preference categories, which can lead to significant differences in aging-out scenarios.
What Happens if a Child Doesn’t Qualify for CSPA Protection?
Certain situations may prevent a child from qualifying for CSPA protection:
- Administrative Delays: If delays occur due to administrative reasons rather than the family’s actions, the child may not be protected under CSPA provisions.
- Unqualified Petitions: If a petition is deemed unqualified or denied, it could also affect eligibility for CSPA protections.
Options Remaining for Aged-Out Children
For children who age out without CSPA protection, options include:
- Independent Applications: They must seek alternative pathways for permanent residency through independent applications or different family sponsorships.
Strategies for Keeping Children Eligible
Parents can consider several strategies to maintain their children’s eligibility for green card processing:
- Timely Filing: Ensure all necessary petitions are filed promptly and accurately.
- Monitoring Processing Times: Stay informed about processing timelines and potential changes in immigration policies that could affect eligibility.
The Importance of Timing in Family Immigration Cases
Timing plays a critical role in family-based immigration petitions:
Why Timing Is Critical
Delays in processing can have severe implications for children’s eligibility:
- Age Limitations: Once a child turns 21, they lose dependent status and must navigate more complex immigration pathways.
Impact of Changes in Immigration Laws
Changes in U.S. immigration laws or processing timelines can significantly affect families:
- Legislative Changes: New laws may alter eligibility criteria or processing times, impacting families’ ability to secure green cards before children age out.
Practical Steps for Parents and Children to Avoid Aging Out
Aging out can pose significant challenges for families navigating U.S. immigration processes. To mitigate these issues, parents can take proactive steps to ensure their children retain eligibility for green cards. Here are some practical strategies:
Proactive Planning and Timely Filing
- Early Petition Submission: Parents should file immigration petitions (e.g., Form I-130) as early as possible. The sooner the petition is submitted, the more time there is for processing before the child turns 21.
- Monitoring Processing Times: Stay informed about current processing times for immigration petitions. This information can be found on the U.S. Citizenship and Immigration Services (USCIS) website and can help families anticipate delays.
- Understanding Priority Dates: Parents should regularly check the Visa Bulletin to track their child’s priority date. Knowing when a visa becomes available is crucial for timely action.
- Expedited Processing Requests: If a child is approaching the cutoff age, parents can request expedited processing of their petition by providing valid reasons, such as imminent aging out or urgent family circumstances.
Ensuring Eligibility Under CSPA
The Child Status Protection Act (CSPA) provides protections for children at risk of aging out:
- Eligibility Criteria: Ensure that children meet all eligibility criteria under CSPA, which includes having a pending or approved petition on or after August 6, 2002, and seeking to acquire permanent residence within one year of visa availability.
- Documentation: Keep thorough records of all applications and communications with USCIS to demonstrate compliance with CSPA requirements.
- Timely Action: Once the priority date becomes current, promptly file Form I-485 (Application to Register Permanent Residence or Adjust Status) if in the U.S., or Form DS-260 (Immigrant Visa Application) if abroad.
Steps If Close to Cutoff Age
If a child is nearing the age of 21:
- Start the Process Early: Begin the immigration process as soon as possible to allow ample time for completion before the child ages out.
- Request Expedited Processing: If there are legitimate concerns about timing, parents should consider requesting expedited processing through USCIS, detailing the urgency of their situation.
- Consult an Immigration Attorney: Seek legal advice to navigate complex immigration laws and ensure all actions align with current regulations.
The Emotional Impact on Families
The prospect of a child aging out can have profound emotional repercussions:
- Fear of Separation: Families often experience anxiety over potential separation due to changing eligibility statuses, leading to heightened stress levels.
- Managing Emotional Complexities: Parents should communicate openly with their children about the situation, providing reassurance and support during this uncertain time.
- Seeking Support Networks: Families facing aging-out issues may benefit from support groups or counseling services that specialize in immigration-related stressors.
What to Do If Your Child Ages Out
If a child ages out despite best efforts, parents should follow these steps:
Assess Options for Adjustment:
If eligible under CSPA, determine if the child can still derive status from the parent’s petition.
Explore independent immigrant visa options if CSPA does not apply.
Filing New Petitions:
If necessary, file a new petition for the child under an appropriate category (family-based or employment-based).
Be prepared for potential challenges in processing times and eligibility criteria under a new application.
Appeal or Seek Alternative Routes:
If denied under previous petitions, consider appealing the decision or exploring alternative visa categories that may be applicable.
Investigate other pathways such as student visas or employment-based options that may provide temporary residency while pursuing permanent status.
Consult Legal Counsel:
Engage an immigration attorney to navigate complex legal options and develop a tailored strategy for reapplying or adjusting status after aging out.
An immigration attorney will give you the best counsel according to your case help you learn what you have and begin the immigration process with ease. CSPA and aging out rules aren’t always straightforward, but with some guidance, you can ensure your child’s green card eligibility and save yourself time and hassle.
How Law and Visas Can Help?
At Law and Visas, our team of expert immigration consultants is here to make your travel to the U.S. straightforward and successful. Whether you’re applying for an F-1 Visa or a Diversity Visa, we handle every step—from preparing your application to gathering the required documents.
Our Immigration Consultants and Lawyers ensure that your application meets the highest standards, with no details missed. We’ll also keep you informed throughout the process and coordinate with the immigration office or embassy on your behalf.
Law and Visas has a strong record of helping clients secure the visas/permits they need to visit the United States. You can call us today at +234 812 5505 986 to learn how we can help you.
