Freezing the child’s age for green card purposes (1)

Under US immigration law, a child is defined as an unmarried person below the age of 21.

Before 2002, a child was required to “immigrate” to the US before turning 21 to maintain the original immigrant visa category under which the child was being sponsored — either as a principal or as a derivative beneficiary.

To “immigrate” meant that the child should have arrived on American soil and gone through a formal immigration inspection at a US port of entry before the child’s 21st birthday.

If the child was already in the US and adjusting status to permanent resident, the adjustment of status application should have been approved before the child turned 21.

If the child failed to “immigrate” before turning 21 — called “aging out” — the child would have lost the eligibility to enter the US or adjust status under the original immigrant visa category and would have been transferred or demoted, in a technical sense, to a different visa category with a different immigration timeline.

In extreme cases, the opportunity to migrate would have vanished entirely.

Considering the snail’s pace of overseas consular processing and the bureaucratic nightmare at US immigration offices during that period, it wasn’t difficult to imagine the anxiety and heartbreak that a delayed immigrant visa interview, an unforeseen medical issue, or an adjustment of status scheduling snafu would have caused immigrating parents with children who were on the verge of “aging out” and faced with the risk of losing the opportunity to migrate at the most inopportune time.

Fortunately, the passage of the Child Status Protection Act (CSPA) in August 2002 helped mitigate the harsh consequences of aging out.

Under the CSPA, the calculation of the child’s age for green card purposes has been altered dramatically for a more humane outcome.

And because of the complexities in the law’s interpretation from various judicial and quasi-judicial bodies since its inception, the CSPA’s impact on juvenile immigration has continued to evolve through the present day.

The law’s most salient feature, as it relates to “immediate relatives” (IR) of US citizens, is the “freezing” of a child’s age at the time of the filing of an IR petition (Form I-130) with the USCIS, regardless of when the petition is ultimately approved or when the child immigrates to the US.

Thus, a child petitioned by a US citizen parent when the child’s biological age is 20 years and 6 months will retain the IR status of a “child” even if the petition will not be approved until two years into the future when the child will have been 22 years and 6 months old and regardless of when the child will immigrate or adjust status in the US.

In other words, the child’s CSPA age in the above scenario is “frozen” at 20 years and 6 months. Consequently, as an IR of a US citizen (where there is no visa quota limit), the child will retain the eligibility to immigrate to the US at any time (unless the child marries in the meantime, in which case the child will lose the IR status and will be moved to a different visa category — married sons and daughters of a US citizen — where the waiting period is much longer).

Without the CSPA’s protection, however, even an unmarried child, as in the above example, would lose the IR status upon turning 21 and would be moved to a different visa category instead (unmarried child of a US citizen), where there is a waiting period of more than a decade.

(To be continued)