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The Immigration and Nationality Act states that unmarried sons and daughters are only eligible to be considered for immigrant status as “children” if they are under the age of 21 when a visa becomes available to them according to the Department of State (DOS) Visa Bulletin Final Action Dates chart. That is, a child for immigration purposes is defined as an unmarried individual under 21 years of age. Children who turn 21 years old before their applications for adjustment of status or immigration visa are decided are said to have “aged out.” “Age out” typically applies to children of legal permanent residents, or Green Card holders, not children of U.S. citizens.
The Child Status Protection Act (CSPA ) was enacted to provide relief to children who “age out” as a result of delays in processing immigrant visa applications. The CSPA does not change the definition of a child but instead changes the point at which the child’s age is calculated.
The CSPA applies to immediate relative children when:
- their petitioning U.S. citizen parent submits a visa petition on their behalf
- a petitioning permanent resident parent naturalizes, or
- a married son or daughter who has been petitioned by a U.S. citizen parent becomes divorced or widowed.
For unmarried children applying for a Green Card as a dependent, the CSPA “freezes” the child’s age at the time the U.S. Citizen parent petitioned for his or her child. That is, the child is treated as being under age, even though he or she may be over 21 before the application is decided.
For unmarried children of a Legal Permanent Resident, the process of determining the age of the child is a little more difficult. First, determine the child’s age at the time a visa number becomes available. Second, subtract from this age the number of days that the visa petition was pending. Third, determine whether the beneficiary sought Legal Permanent Resident status within one year of the visa availability date. That is, the first two steps determine the child’s age. However, the child’s age will only lock in place if the third step is met.
CSPA and citizenship questions can be complicated, so if you are unsure about whether your son or daughter may be qualified for “child” status under CSPA, it is strongly recommended that you seek advice from an experienced immigration attorney.