Is Your Child Aging Out?

The term “aging out” occurs when a “child” applies for an adjustment of status and/or an extension of nonimmigrant status, but during the adjudication of the application the “child” turns 21 years old and is no longer eligible to receive the requested benefits.

Under immigration law, a “child” is defined as an unmarried person under 21 years of age.[1] The definition alone does not impose unreasonable restrictions on a child applicant, but when coupled with delays in the adjudication process, being a child applicant can create issues of eligibility for both immigrant and nonimmigrant benefits. In many instances, the issue of “aging out” occurs when a beneficiary is applying for permanent residency based on their status as a “child.” For example, a child who turns 21 before her adjustment of status application is adjudicated has “aged out” and has lost her eligibility for a Green Card. In other instances, the issue of “aging out” occurs when a beneficiary is applying for a nonimmigrant dependent visa based on their status as a “child.” For example, a child on H-4 visa who turns 21 is no longer eligible to file as a dependent of the H-1B visa holder.

Practically speaking, child applicants could lose their pending immigrant opportunity and nonimmigrant dependent status all at once due to USCIS’ processing delays beyond their 21st birthday. This possibility has become more and more common for many families maintaining nonimmigrant statuses to stay in the United States until the adjustment of status application is able to be filed and adjudicated. “Aged out” children would be forced to restart their permanent residency application and wait even longer to get a Green Card, or may no longer be eligible for a Green Card. In addition, “aged out” children would lose their nonimmigrant status, like H-4, and would need to find alternate nonimmigrant status like an F-1 student visa or H-1B visa.

However, Congress recognized that many child applicants were being “aged out” due to USCIS processing backlogs, and on August 6, 2002, passed the Child Status Protection Act (CSPA). Congress designed the CSPA to protect a beneficiary’s immigration classification as a “child” when he/she “ages out” due to the long processing times, specifically for adjustment of status purposes.

While the CSPA can help to prevent child applicants from aging out due to backlogs and extensive processing times, child applicants applying for CSPA protection for adjustment of status must be the beneficiaries of a pending or approved visa petition that was filed on or after August 6, 2002, must not have had a final decision on an application of adjustment of status before August 6, 2002, and must “seek to acquire” permanent residence within 1 year of a visa becoming available by filing a Form I-485 or submitting a Form DS-230 with the Department of State.

It is also important to note that the CSPA does not re-define “child” under immigration law. The CSPA simply provides a method for calculating a beneficiary’s age to determine if they meet the definition of a “child,” and allows the beneficiary to remain a “child” beyond his/her 21st birthday for purpose of filing their adjustment of status application. Under the CSPA, the age of the beneficiary is determined on the date in which an immigrant visa number becomes available for his/her parent’s immigrant petition, subtracted by the number of days the petition was pending with USCIS.[2]

As for nonimmigrant statuses like H-4 or L-2, unfortunately, the CSPA does not provide any protection for the “aging out” of a child when they turn 21. The H-4 and L-2 visas have no limitations for dependent spouses as long as the H-1B or L-1 visa is valid, but they do for dependent children who turn 21. Therefore, it is important for parents to plan ahead when their child approaches the cutoff age in order to remain in the United States while waiting to file for their Green Card.

If you any concerns regarding your child’s eligibility for immigrant or nonimmigrant benefits, please contact one of Reddy & Neumann, P.C.’s qualified immigration attorneys.

       

[1] INA § 101(b)(1) and U.S.C. § 1101(b)(1)

[2] CSPA § 3(h)(1)(A)(B)

 

By Vy Hoang

Vy is the Managing Attorney for Reddy & Neumann, P.C.'s H-1B department. Her focus is on H-1B specialty occupation and covers all phases of the nonimmigrant visa process.

 

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