Mitigating Harsh Effects of Children Turning 21 -- November 30, 2008

           Jake was four years old when his US citizen grandparent filed petitions on behalf of his parents in 1991. He was the only child then and now has two more siblings born in 1995 and 1996.

            On December 25, 2008, Jake will turn 21 years old. He feels miserable this Christmas season because of his upcoming birthday. An immigration consultant informed him that he will no longer qualify as a derivative beneficiary of the immigrant petition of his US citizen grandfather after he turns twenty one. His nightmare is that both his younger siblings and his parents will all migrate to the United States and that he will be left behind in Manila.

 Does Jake have any relief available to him to enable him to join his family when they migrate to the United States? How can he take advantage of the Child Status Protection Act, which he was told, freezes the age of a child turning twenty one years old?

The pertinent provision of the Immigration and Nationality Act defines a “child” as an unmarried person under age 21 years old. If one qualifies as a child, s/he may qualify as immediate relative of a US citizen with a short visa processing time.

The delays in the adjudication of the petitions by the US Immigration and Citizenship Services (USCIS), the long wait for priority dates and the scheduling for interview by the US Department of State are, most of the time, the causes of the delay in the issuance of the visas. In the meantime, because of these delays, the children are “aging out” or turning 21years old. The worst and unfortunate impact on the aging out is that the child will be left behind while his family members migrate to the United States.

To mitigate the harsh effects and unfortunate impact on beneficiaries of petitions turning 21 years old, the Child Status Protection Act (CSPA) was enacted in 2002.

CSPA changes who can be considered to be a "child" for the purpose of the issuance of visas. It benefits children who are beneficiaries of visa petitions in the immediate relative and family second preference categories and derivative beneficiaries of family and employment preference petitions.

The CSPA provides that if  a U.S. citizen files a Petition for Alien Relative (Form I-130) on behalf of his/her child before he or she turns 21, the child will continue to be considered a child for immigration purposes even if USCIS does not act on the petition before the child turns 21. The date of filing of the petition is the CSPA age of the child. Hence, if the US citizen files the petition when the child was 20 years old and no approval is yet received from the USCIS after he had turned 21 years old, the CSPA age is still 20 years and he shall still be considered a minor child.

Children of lawful permanent residents also benefit if a Form I-130 is filed on behalf of their children and children of principal applicants in preference categories. There is a mathematical formula used to calculate the CSPA age. This is determined on the date that the visa, or in the case of derivative beneficiaries, the principal alien’s visa, becomes available. The CSPA age is the result of subtracting the number of days that the immigrant visa petition was pending from the actual age on the date that the visa becomes available. If the ‘CSPA age’ is under 21 after that calculation, the child will remain a “child” for purposes of the permanent residence application.

The CSPA minimizes harsh impact on children turning 21 years old. It does not, however, provide automatic protection against “aging out”. There are certain steps that must be taken by the petitioner, the child beneficiary or the attorney before the CSPA benefits will apply. It requires that the immigrant visa is applied within a year from the date the visa’s priority date becomes current or available.

There is also no capturing of priority dates in case of re-filing of the petitions for the child who turned 21 years old. There was a BIA decision in the Matter of Garcia in 2006, where the priority date of the fourth preference petition was allowed to be used in re-filing the petition filed on behalf of the child. According to the USCIS, this is not a precedent decision and not a general rule.

Provisions of the CSPA are short but complex. The interpretations and its applicability are based on USCIS and Department of State memorandum and court decisions. Despite the complexity, there are matters which the petitioner may strategically do to cover their child under the CSPA and this includes the rush filings of petitions for children of US citizens turning 21 years old. In the case of Jake above, the mathematical calculation of his CSPA age may qualify him for the CSPA age and he may still be considered as a child. For those turning 21 years old their aging out should not be taken as a penalty per se. Instead, they should examine the applicability of CSPA or explore the various immigration options to migrate to the US.