How Do I Prevent My Child From Losing Benefits at Age 21 ("Aging Out")?
What is an "Aging Out" case?
An "Aging Out" case is a situation referring to a person’s petition to become a permanent legal resident as a "child" (for definition please see child as defined in the Immigration and Nationality Act), and in the time that passes during the processing of the application, the "child" turns 21, and "Ages Out."
Under immigration law, a person wishing to become a permanent resident based upon his or her status as a "child" must meet the definition of child as found in the Immigration and Nationality Act. In general, this person must be unmarried and under the age of 21. Prior to the passage of The Child Status Protection Act (CSPA) on August 6, 2002, if the child turned 21 years of age before his or her adjustment of status was completed, the child "aged out" and could not become a permanent resident.
Does The Child Status Protection Act (CSPA) prevent my child from “Aging Out?”
If you are a United States Citizen petitioning on behalf of your child, yes, the CSPA prevents your child from "Aging Out." If you are a Legal Permanent Resident petitioning on behalf of your child, a formula for timing is clarified in the September 20, 2002, CSPA memo for you to review.
The CSPA was enacted on August 6, 2002. This law amends the Immigration and Nationality Act by changing how an alien is determined to be a child for purposes of immigrant classification. This law changes who can be considered to be a "child" for the purpose of the issuance of visas by the Department of State and for purposes of adjustment of status of aliens by the U.S. Citizenship and Immigration Services (USCIS).
Under the CSPA, if you are a United States citizen and you file a Form I-130, Petition for Alien Relative, on behalf of your child before he or she turns 21, your child will continue to be considered a child for immigration purposes even if the USCIS does not act on the petition before your child turns 21.
Under the CSPA, if you are a lawful permanent resident and you file a Form I-130 on behalf of your child before he or she turns 21, your child’s age will be determined using the date that the priority date of the Form I-130 becomes current, minus the number of days that the Form I-130 is pending. In addition, your child must seek to acquire the status of a lawful permanent resident within one year of visa availability. This provision also applies to derivative beneficiaries on family-based and employment-based petitions.
For a more detailed explanation of the CSPA, please review both the guidance memos, H.R. 1209 – The Child Status Protection Act, August 7, 2002, and The Child Status Protection Act, September 20, 2002, on this matter.