What happens if a child ages out when filling out the I-130 petition?

If Form I-130 (“Petition for Alien Relative”) is filed for the child of an immigrant, but the child turns 21 before receiving a green card, they are no longer considered a child for immigration purposes, and they must apply for a different immigration status to stay in the U.S. lawfully.

Congress passed the Child Status Protection Act, or CSPA, to prevent children from aging out due to long processing backlogs by the immigration agencies.

CSPA “freezes” the child’s age on the date their sponsoring U.S. citizen parent submits an I-130 petition on their behalf; the date a sponsoring permanent resident parent becomes a U.S. citizen; or the date a married son or daughter sponsored by a U.S. citizen parent becomes divorced or widowed. This “frozen age” is often referred to as the child’s “CSPA age.”

CSPA age for children in visa preference categories is calculated by subtracting the length of time the I-130 was pending from the child’s age on the date an immigrant visa became available. To take advantage of the CSPA provisions, a child in a preference category must “seek to acquire” permanent residence in the U.S. within one year of the visa number becoming available.

Typically, if the child’s CSPA age turns out to be 21 or older, they will be automatically reclassified into the appropriate preference category – often family-based 2B category.

However, if the child’s parents become U.S. citizens after their CSPA age is 21 or older, the parent’s naturalization typically converts the child’s petition from the F-2B preference category to the 1st preference category, F-1. Due to per-country caps on visa issuance, certain countries have very long wait times to immigrate in categories like F-1, though the F-2A category has been current since summer 2019.

CSPA and citizenship questions can get complicated, so if you feel unsure about you or your child’s situation it is strongly encouraged that you seek the advice of an experienced immigration attorney.

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