What is ‘Aging Out?’

Under the Immigration and Nationality Act (INA), a “child” is defined as an unmarried person under the age of 21. In many situations, an alien child is eligible for immigration benefits. For example, if he or she is the child of a U.S. citizen or legal permanent resident, the child of a beneficiary to an immigrant petition, or a derivative beneficiary of a parent’s employment-based immigration or family-based immigration petition, he or she may be eligible for status as a legal permanent resident. 

Before the Child Status Protection Act (CSPA), many aliens were concerned about a situation known as aging out. This occurs when a child applies for adjustment of status, or consular processing, and while the application is being adjudicated, the child turns 21 and becomes ineligible for a green card. Congress recognized that many beneficiaries were aging out due to large backlogs and long processing times for visa petitions, so it passed CSPA on August 6, 2002. The CSPA is designed to protect an individual’s “child” status when he or she ages out due to excessive processing times. To be eligible for CSPA protection a child must:

• Be the beneficiary of a pending or approved visa petition on or after August 6, 2002;
• Not have had a final decision on an application for adjustment of status or an immigrant visa before August 6, 2002; and
• Seek to acquire permanent residence within one year of a visa becoming available.

“Seek to acquire” is interpreted as having a Form I-824 (Application for Action on an Approved Application or Petition) filed on the child’s behalf, the filing of a Form I-485 (Application to Register Permanent Residence or Adjust Status), or submission of Form DS-230 (Application for Immigrant Visa and Alien Registration from the Department of State). It is also important to note that the date of visa availability refers to the first day of the first month a visa was listed as available in the Department of State’s visa bulletin or the date the visa petition was approved, whichever is later.

Under the CSPA, two dates are important for calculating the age of an alien child: (1) the age of the child when an immigration visa becomes available for his or her parent’s immigration petition, and (2) the number of days the immigration petition is pending. The age of the child is determined by subtracting the number of days the petition was pending from the age of the child at the date a visa became available. To illustrate, a parent files an immigrant petitions when his son is 20 years, 11 months old. The petition is approved six months later when the child is 21 years and five months, and a visa number becomes available immediately. The child’s age is then reduced by six months and locked in at 20 years, 11 months. The child can then apply for adjustment of status with his parent.

If you are interested in applying for a green card or have questions about it, please contact our office to schedule a consultation with one of our attorneys today!