What will impact the child (derivative) applicant if their age turns over 21 while application is pending?
What will impact the child (derivative) applicant if their age turns over 21 while application is pending?
For the immigration benefit purpose in the U.S., the Immigration and Nationality Act (INA) defines a child as a person who is both unmarried and under 21 years old. Generally, if someone applies for lawful permanent resident (LPR, also known as a green card) status as a child but they turn to 21 years old before they are being approved or pending status, that person can no longer be considered a child for immigration purposes. This situation is commonly known as “aging out”. On this situation, that applicants would have to file a new petition or application to get an LPR status, or may no longer be eligible for an LPR.
Congress recognized that many children were aging out due to large backlogs at USCIS, so it enacted the Child Status Protection Act (CSPA) to protect certain children from aging out. The law went into effect on August 6, 2002. However, the law does not change the definition of a child. Instead, it provides a method for calculating the applicant’s age to see if they meet the definition of a child for immigration purposes. Generally, the calculated age is the eligible “child age” per CSPA law. This allows some people to remain classified as children beyond their 21st birthday. More importantly, it does not change the requirement that the applicant must be unmarried in order to remain eligible for classification as a child.
What immigration categories are affected per CSPA guidelines?
CSPA applies only to the following people:
Immediate relatives;
Family-sponsored preference principal applicants and derivative applicants;
Violence Against Women Act (VAWA) self-petitioners and derivative applicants;
Employment-based preference derivative applicants;
Diversity Immigrant Visa (DV) derivative applicants;
Derivative refugees; and
Derivative asylees.
Generally, if an applicant is applying for an LPR status based on one of the categories above, they are eligible for CSPA consideration or one of the above underlying forms was filed or pending on or after August 6, 2002. Please note that CSPA eligibility calculations are slightly different in such categories. For example: as a derivative refugee, while they must be unmarried to qualify for admission into the U.S., they do not need to remain unmarried in order to qualify for applying the adjustment filing under INA 209. However, as a derivative asylum unlike derivative refugees, the applicant must be unmarried in order to qualify for a grant of derivative asylum and to qualify per INA 209.
If you have questions about whether or not your child is allowed to immigrate to the U.S. with you or is allowed to follow to join in the U.S., please seek help from experience immigration attorney or immigration consultant specialty.
Citation:
· INA 207(c)(2)(B); INA 208(b)(3)(B); INA 209; INA 201(f); INA 203(h);
· USCIS Policy Manual, Volume 7, Adjustment of Status, Part A
Note: This information is for generally educational or informational purposes only and it does not constitute legal advice.
