How does immigration law protect children from “aging out” of the employment-based green card process?

Stephen D. Parker
Stephen D. Parker 7 Nov, 2019

By Stephen D. Parker

With continued unpredictability in the ever-growing green card immigrant visa backlog, employees are often concerned about their children turning 21 during the process and “aging out.” Children are typically included as “derivative” beneficiaries on their parent’s permanent residence process, and immigration law defines a child as unmarried and under 21. But what if a child turns 21 during the green card process? Will he or she “age out”? It depends.

The Child Status Protection Act (CSPA) provides a formula to adjust a child’s age to account for U.S. Citizenship and Immigration Services processing delays, so that he or she may continue to qualify as a “child” even beyond turning 21. The child’s CSPA-adjusted age is calculated by subtracting the number of days the employee’s immigrant visa petition was pending with USCIS from the child’s biological age on either the date of approval or the date an immigrant visa becomes available according to the visa bulletin (whichever is later). As long as the CSPA-adjusted age is less than 21, the child will qualify. Because of this subtraction formula, it may be strategic not to utilize premium processing with certain I-140 immigrant petition filings.

CSPA adjusted age = [Age at time of visa availability] minus [Time petition has been pending]

Example: An employee’s immigrant petition was filed the day before her child’s 21st birthday and was approved 365 days later with the priority date immediately available at that time.[1] Even though the child’s biological age is nearly 22, the child’s CSPA-adjusted age remains 20. As long as the adjusted age is less than 21, the child may be included with the employee parent’s green card process. But what if the employee’s priority date is not immediately available at the time of approval? The child is not protected by the CSPA and “aged out.”

Additionally, the CSPA-qualified child must “seek to acquire” lawful permanent residence within one year, typically by filing for Adjustment of Status in the U.S., or completing certain steps toward consular processing if the child is abroad.

There are important limitations to the CSPA. The CSPA protects children from aging out because of USCIS processing delays—not visa bulletin retrogression. The CSPA does not preserve nonimmigrant status; children who are H-4 or L-2 dependents, for example, will lose that status when they turn 21 and must find another visa category in order to remain in the U.S. lawfully. In addition, they must remain unmarried while waiting for their permanent residence approval.

During periods of retrogression, we are sometimes asked to predict when an employee’s priority date would hypothetically need to become current to prevent the child from aging out. In other words, what is the last possible date the child would qualify under the CSPA? This can be calculated by rearranging the formula.

[Date by which employee’s visa availability will be needed for the child to qualify under the CSPA] = [Date of child’s 21st birthday] + [Time petition pending] 

Given current trends of significant retrogression in many employment-based categories with only minor advancement, employers and employees are encouraged to work with their BAL attorneys to initiate the green card process early where feasible, and consider contingency plans for children who may nevertheless age out.

Stephen D. Parker is a Senior Associate in the Dallas office of Berry Appleman & Leiden LLP.

The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.

[1] For purposes of the CSPA, the date of visa availability is determined based on the Final Action dates chart of the visa bulletin. USCIS does not refer to the Dates for Filing chart for CSPA determination.