How Do I Prevent My Child From Losing
Benefits at Age 21 ("Aging Out")?
What is an "Aging Out" case?
An "Aging Out" case
is a situation referring to a person’s petition to become a permanent legal
resident as a "child" (for definition please see child as defined in
the Immigration and Nationality Act), and in the time that passes during the
processing of the application, the "child" turns 21, and "Ages
Under immigration law, a
person wishing to become a permanent resident based upon his or her status as a
"child" must meet the definition of child as found in the Immigration
and Nationality Act. In general, this person must be unmarried and under the
age of 21. Prior to the passage of The Child Status Protection Act (CSPA) on
August 6, 2002, if the child turned 21 years of age before his or her
adjustment of status was completed, the child "aged out" and could
not become a permanent resident.
Does The Child Status Protection Act
(CSPA) prevent my child from “Aging Out?”
If you are a United States
Citizen petitioning on behalf of your child, yes, the CSPA prevents your child
from "Aging Out." If you are a Legal Permanent Resident petitioning
on behalf of your child, a formula for timing is clarified in the September 20,
2002, CSPA memo for you to review.
The CSPA was enacted on
August 6, 2002. This law amends the Immigration and Nationality Act by changing
how an alien is determined to be a child for purposes of immigrant classification.
This law changes who can be considered to be a "child" for the
purpose of the issuance of visas by the Department of State and for purposes of
adjustment of status of aliens by the U.S. Citizenship and Immigration Services
Under the CSPA, if you are a United States
citizen and you file a Form I-130, Petition for Alien Relative, on behalf of
your child before he or she turns 21, your child will continue to be considered
a child for immigration purposes even if the USCIS does not act on the petition
before your child turns 21.
Under the CSPA, if you are a
lawful permanent resident and you file a Form I-130 on behalf of your child
before he or she turns 21, your 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, your child must seek to
acquire the status of a lawful permanent resident within one year of visa
availability. This provision also applies to derivative beneficiaries on
family-based and employment-based petitions.
For a more detailed
explanation of the CSPA, please review both the guidance memos, H.R. 1209 – The
Child Status Protection Act, August 7, 2002, and The Child Status Protection
Act, September 20, 2002, on this matter.