For immigration purposes, a “child” is defined as a person who is both unmarried and under the age of 21. If a person applied for lawful permanent resident status as a child but turned 21 before being approved for receiving a green card, that person could no longer be considered as a “child”. This situation is called “aging out”. It means that such applicant would have to file a new petition or even may no longer be eligible for a green card.
However, there is Child Status Protection Act (CSPA) that prevents “aging out” complications. CSPA applies to children of US citizens, lawful permanent residents and derivative beneficiaries of family-based visas. CSPA provides a method for calculating a person’s age to see if he/she meets the definition of a child for immigration purposes (so called “CSPA age”).
CSPA works the following way for immediate relative category:
- Being a US citizen parent, you can avoid “aging out” issues by filing Form I-130, Petition for Alien Relative. It will simply “freeze” your child’s age on the date of filing of Form I-130.
- If you are filing Form I-130 as a permanent resident parent and you naturalize before your child turns 21, your son’s/daughter’s age “freezes” on the date when you naturalized.
As for family preference category, CSPA allows to subtract the number of days that the petition was pending from the child’s biological age at the time of visa availability. This is applicable only if the beneficiary (child) seeks to acquire the status of a legal permanent resident within 1 year of the date visa became available.
Meanwhile, please note that in all cases the child must remain unmarried in order to qualify.