COVID-19 UPDATE: Rahman Law PLLC remains fully operational at this time.

Are You Aged Out Of Your Immigration Application?

In American immigration law, a “child” is an unmarried individual under 21 years old. So what happens if you have a mother or father who petition for an immigrant visa (or green card) for you as a child, or, if you are listed as a derivative beneficiary on your parent’s petition, and you turn 21 before the petition is approved? Does the Child Status Protection Act (CSPA) apply to you?

It depends.

If you are the child of a US citizen, then your age is “frozen” on the date your US Citizen parent files an I- 130 for you. Thus, if a USC father files an I-130 for his unmarried 20 year old daughter, the daughter retains her status as a “child” even if her I-130 is not approved until after she turns 21.

However, if you are the child of an LPR (Lawful Permanent Resident, also referred to as a green card holder), your ability to retain your status as a “child” depends on a few factors. First, if your parent naturalizes while their I-130 for you is pending, your age will “freeze” on the date of their naturalization. For example, if you are 20 when your mother files an I-130 for you, but they naturalize before the I-130 was decided, and you are already 21 years old when they become a USC, you are no longer considered a child and you are not eligible for CSPA benefits, but if you are still under 21 on the date they naturalize, you will be considered a child and can benefit.

Next scenario is: what if you are not a direct beneficiary of an I-130, but instead a direct or derivative beneficiary of your mother or father’s application (i.e., what if your mother’s employer sponsors her for a greencard while you are still a child, and you are listed as a child on your mother’s application)? A special statutory formula is applied to calculate you rage. Your age will “freeze” as of the date that a visa number becomes available for the petition in question, reduced by the number of days that the petition is pending if you seek to acquire Lawful Permanent Resident status within one year of the visa becoming available.

Thus, if your father’s USC brother filed an I-130 in 2000 for your father when you were 10 years old, you were listed as your father’s derivative beneficiary. However, because of the long wait time for siblings of US Citizens, your father’s visa date does become available until 2015, by when you are already 25 years old. Your age is frozen at age 25; but subtract 15 years for the pending time, and your CSPA age is actually still 10 (and you can benefit from CSPA) – provided you seek to acquire a greencard within 1 year of the visa date becoming current in 2015. If you wait more than one year, you cannot benefit from CSPA and you will be aged out.

CSPA is a complicated statute, and whether you qualify to receive its benefits will depend on a variety of factors. Only an attorney knowledgeable in this statute can help you evaluate whether you can seek its protections, or whether you will need to seek immigration benefits through different means. Lastly, CSPA has many other provisions, and only applies to cases pending on or after August 6, 2002. If you would like a consultation on your case, please contact us today.