In the past, when a U.S. citizen or permanent resident used "child status" to obtain permanent residency for their child, the application would be denied by immigration authorities if the child turned 21 while the application was pending.
Aging out is when a child loses their place in line for residency because they turned 21 before their application was processed.
What Is the Aging out Law Today?
The law changed to offer some protection against "aging out." The law, called the Child Status Protection Act of 2002 (CSPA), and initially prevented a child from "aging out" if the parent is a:
1) U.S. Citizen – the child may be barred from aging out if they are younger than 21 when the application is submitted.
2) Permanent Resident – A child should not be aged out if:
- Their age is calculated to be younger than 21 when the application is processed. To determine your child’s age, the immigration authorities use the age of your child when the application is approved and subtract the time the application pended before approval.
- The child takes steps to complete their residency within one year of the visa being available. Taking steps means:
Having a Form I-824, Application for Action on an Approved Application or Petition, filed on the child’s behalf
Filing of a Form I-485, Application to Register Permanent Residence or Adjust Status
Submitting Form DS-230, Application for Immigrant Visa and Alien Registration from the Department of State.
However, the safe harbor provisions CSPA are not exactly cut and dry. In recent years, there has been much confusion over its application to derivative beneficiaries, meaning it has been unclear when and which types of applicant children actually can retain "child" status. The Board of Immigration Appeals (BIA) has narrowly construed these age out provisions, reading the CSPA as providing a remedy only to those who aged-out and qualified or could have qualified as principal beneficiaries of a visa petition, rather than only as derivative beneficiaries piggy-backing on a parent.
Who Qualifies for Aging out Protection?
At the time the application for residency is submitted the child must be under 21 and unmarried, and, following BIA interpretation of the CSPA, must be eligible as a principal beneficiary and not merely a derivative beneficiary.
Do I Need an Immigration Lawyer?
Fearing your child may not gain residency can be very stressful. If have been waiting years for a visa as principal beneficiary, and your child’s application is dependent upon yours, or has been denied because they turned 21, an experienced immigration attorney can suggest other residency options and help you process the required documentation.