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Family-based Green Cards (Part 4): Children and Aging Out

Posted by Ann Badmus | Oct 17, 2012 | 0 Comments

The age of a sponsored child is very important in all priority levels, including immediate relatives. Remember that a child must be under the age of 21 to qualify as an immediate relative or as an unmarried child under the 2nd preference. In addition, children of sponsored sons and daughters (grandchildren) and children of sponsored siblings (nieces and nephews) must also be under 21 in order to immigrate with the rest of the family. However, because of long processing times and even longer waiting periods for most priority levels, many children “age-out” or reach the age of 21 before the immigrant visa can be issued. Oftentimes, these children are left behind and cannot immigrate with the rest of the family. To address this issue, Congress enacted the Child Status Protection Act (CSPA) on August 6, 2002. The provisions of the Act are fairly complex and address age issues for family and employment-based green cards as well as citizenship.

The child of a U.S. citizen continues to be an immediate relative so long as the citizen sponsor files a Form I-130, Petition for Alien Relative, on behalf of his or her child before he or she turns 21. Therefore, even if the USCIS does not act on the petition until after the child turns 21, the child will be able to immigrate with the rest of the family and not be placed into the 1st priority level (unmarried sons or daughters), where the waiting list is long.

For the priority categories, the formula is more complicated. Under the CSPA, if the Form I-130 is on file before the child turns 21, the child's age will be determined using the date that the priority date of the Form I-130 becomes current, minus the number of days that the Form I-130 is pending. In addition, the child must seek to acquire the status of a lawful permanent resident within one year of visa availability.

For example, on January 2, 2010, Jim, a U.S. citizen, files an I-130 for his brother, John. The USCIS takes two years to approve the I-130. John has a daughter, Susan, who is 10 years old. The current waiting time for preference category four is approximately 11 years. On March 13, 2021, the priority date is current for John and he and his family can now immigrate to the U.S. However, Susan is now 21 years old. To determine whether she can immigrate with the family, we must determine her “immigration age” under the CSPA. According to the formula, we use her current age of 21 and subtract the two years the USCIS took to approve the I-130. We calculate that she is 19 for immigration purposes and thus, she can immigrate with the rest of the family.

This same formula applies to children at all other priority levels. Also, it should be pointed out that filing an I-130 may not prevent the child from “aging out” in all situations. For instance, if the child is 25 years old at the time the priority date is current but it only took two years for the USCIS to approve the I-130, then the child will be 23 years old for immigration purposes and ineligible to immigrate with the rest of the family.

About the Author

Ann Badmus

Principal and Managing Attorney


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