Wilner & O'Reilly, APLC - Immigration Attorneys In California And Utah
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Immigration Consequences Of Turning Twenty-One

When I look back on my experiences as an Immigration Officer I can recall quite vividly the mad scramble and stress associated with cases involving applicants turning 21-years of age. The ramifications of this birthday were clear to all parties involved, child turns 21 and forever changes his or her immigration category and his or her ability to become a lawful permanent resident.

Under the Immigration and Nationality Act the definition of a child is defined in part as an unmarried person under the age of 21. This definition is important as it directly impacts the types of relationships and the timing of who can become a lawful permanent resident.

An example would be a U.S. citizen who petitions for his twenty-year old child and the visa is immediately available. However, if the child turns 21 during the process he or she would change preference categories, become ineligible for residency and wait a further five years or more before the visa is again available.

Previously, because of inefficiency at the Immigration Service, these cases could take years to process and often resulted in heart ache and disappointment as a child would "age out" or turn 21 before adjudicating his or her status. Age twenty-one is special for many reasons but in immigration it has become a deadline. Fortunately, we now have the Child Status Protection Act.

In an effort to avoid the injustice associated with the above-mentioned scenario President Bush on August 6, 2002 signed into law the Child Status Protection Act or CSPA. This law changed who can be considered a "child" for purposes of obtaining immigration benefits.

Under CSPA a child who would have lost benefits upon turning age 21 under prior law, is now able to obtain those benefits. The law in essence will freeze the child's age upon the happening of certain events. However, before you can "freeze" a child's age you must qualify for its protection.

To be eligible for the protection of CSPA you must be a beneficiary or derivative beneficiary of:

  1. An immigrant petition (Form I-130) approved before August 6, 2002 "but only if a final determination has not been made on the application for an immigrant visa or adjustment of status..."
  2. An immigrant petition "pending" on or after August 6, 2002; or
  3. An application for an immigrant visa or adjustment of status is "pending on or after August 6, 2002.

It is apparent then that the law is intended to apply to a petition (I-130) pending on the effective date of August 6, 2002 or an application for adjustment of status or immigrant visa if pending on the effective date.

If you have a child that qualifies under one of the above categories then he or she will likely be protected under CSPA and can avoid the heartache often associated with "aging out." Because "aging out" can be devastating to a family please seek a competent legal counsel.

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