The immigration laws of the United States provide special benefits for children. For immigration purposes, the definition of the term “child” often means the difference between qualifying for an immigration benefit and not. Within the immigration laws, there are many facets involved in the definition of the term “child” including age, marital status, and relationship. This article is concerned only with the issue of age and will not address the other issues.

Ordinarily, to qualify as a “child” for immigration purposes, the individual must be under the age of 21 years. To be clear, this means that the individual has not yet celebrated his or her twenty-first birthday.

In 2002, Congress passed the Child Status Protection Act (CSPA), Pub. L. 107-208 (Aug. 6, 2002). Many children who would otherwise qualify for immigration benefits reach age 21 without acquiring immigrant status due to agency backlogs and visa quota constraints. The purpose of the CPSA is to ameliorate the harsh consequences of a child “aging out” and becoming ineligible to immigrate due to no fault of his or her own.

The CPSA does not cover all factual situations, but does provide relief for most. Specifically, it applies to children of:

1. U.S. citizens;
2. lawful permanent residents (LPRs); and
3. principal applicants in the employment based, family based, and diversity visa categories.
4. asylees and refugees;

Children of U.S Citizens

When a U.S. citizen parent files an immediate relative (I-130) petition, the age of the child is fixed for immigration eligibility purposes as of the date the petition is filed.

If the son or daughter is married (and thus does not qualify as a child) when the petition is filed, but terminates the marriage before turning 21, his or her age will be fixed for immigration purposes as of the date the marriage is legally terminated (by death, divorce, or annulment). For example, a US citizen mother files a petition for her 19 year old married son, but the son becomes divorced at age 20, then the son’s age for immigration purposes is 20 and the petition becomes automatically converted to an immediate relative petition.

Children of Lawful Permanent Residents (LPRs)and children of principal applicants in the employment based, family based, and diversity visa categories

For children in these categories, the child’s age will become fixed as of the date the priority date of the visa petition becomes “current” in the Visa Bulletin – minus the number of days the petition was pending between the date of filing and date of approval.

Calculating a child’s age under this system is a three step process:

1. Determine the child’s actual, chronological age as of the first day of the first month that the preference petition’s priority date is shown as being “current” in the Monthly Visa Bulletin;
2. Subtract from this age the number of days that the visa petition was pending between the filing date and the approval date: and,
3. Determine whether the child applied for immigrant status within one year of the date the preference petition’s priority date became current.

An example is in order: The qualifying preference petition was pending for 850 days (2 years, five months). The child is 22 years, two months old when the petition’s priority date becomes current. For immigration purposes, the child is 19 years, 9 months old.

Irrespective of the child’s age, the child must apply for immigrant status within one year of the date the petition’s priority date becomes current or the date the child reaches age 21 (as calculated under this special system) – whichever comes first.

The CPSA provides another benefit for family based immigrants. If an LPR parent files an I-130 on behalf of a child in the family based second preference classification, and the parent subsequently naturalizes while the petition is still pending, the adult son or daughter is entitled to keep the F2 priority date even though the petition will converted automatically by law to an F1 upon naturalization of the parent.

Asylees and Refugees

When a parent files an application for asylum or refugee classification, the “age” of the child is fixed as of the date of the filing – irrespective of how long it takes the CIS to process the parent’s application. Thus, a child who is 19 years old on the date the parent files for asylum or refugee classification will still be considered 19 if the requested classification is approved five years later when the child is actually 24.

To qualify, the following criteria must be met:

1. The child must be under age 21 at the time the application is filed; and
2. The parent is granted asylum on or after August 6, 2002 and the parent has followed all of the requirements for filing form I-730; or
3. The parent was granted asylum before August 6, 2002 and the child reached 21 before that date, but only if the I-730 was filed before August 6, 2002 and was still pending on that date.