AN IMMIGRATION ODDITY: THE 21-YEAR-OLD “CHILD”.

Under the Immigration and Nationality Act (“INA”), an unmarried individual under 21 years of age is considered a “child” for immigration purposes. (INA §101(b)). Before 2002, once an individual turned 21 years of age, he/she could not be considered a “child” for immigration purposes and that individual would lose certain immigration benefits. For instance, he/she would not be granted permanent residency based on a family petition filed by a U.S. citizen parent. In the immigration field, this situation is commonly known as “aging out”.

In 2002, due to excessive processing backlogs at U.S. Citizenship and Immigration Services (“USCIS”), Congress enacted the Child Status Protection Act (CSPA) (Pub. L. No. 107-208, 116 Stat. 927 (2002)), which amended the INA by changing who qualifies as a child for immigration purposes. In essence, the CSPA allows beneficiaries who have turned 21 to retain the classification of “child” for immigration purposes if certain conditions are met.

Since the CSPA took effect on August 6, 2002:

  • 1. A child who is unmarried and under 21 years of age at the time the child’s U.S. citizen parent files an I-130 family petition on the child’s behalf preserves his/her “immediate relative” status upon turning 21. This means the child will remain an immediate relative regardless of how long it takes to process the petition, file for permanent residency, or become a permanent resident. The child, however, must remain unmarried.
  • 2. A married child who is under 21 and who divorces while the child is still under 21 returns to the “immediate relative” category.
  • 3. An unmarried and under 21 child whose permanent resident parent has filed an I-130 petition on their behalf, and whose parent becomes a naturalization citizen before the child turns 21, converts to the “immediate relative” category, and the child will also retain “immediate relative” status even after turning 21.
  • 4. Lastly, a derivative child of a surviving parent whose U.S. citizen spouse died and who files a petition (I-360) within two years of the spouse’s death can also immigrate with the widow(er) as an “immediate relative” provided the child was unmarried and under the age of 21 when the I-360 petition was filed. (INA §§201(f), 203(h), 204(k); 8 U.S.C. §§1151, 1153, 1154).

There are many caveats in the CSPA, including a one-year filing requirement, visa retrogression, and opt-out options. If your child is about to turn 21 (or even if the child’s birthdate is still years down the road), seek the advice of an experienced immigration attorney. A moment of your time now could save you (and your child) many headaches in the future.

Marie E. Wood is an immigration, business, and transactional law attorney with Reid & Hellyer, APC, Co-Chair of the Immigration Section of the North County Bar Association, and 2017 President of the Southwest Riverside County Bar Association. She may be reached at (951) 695-8700, Reid & Hellyer, APC, 41955 Fourth Street, Suite 210, Temecula, California 92590.

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