What Happens If My Child Ages Out Before Green Card Approval

CSPA Protection for Green Card Child

Despite the green card dependent visa rule change in 2002 and the Child Status Protection Act, some children are still aging out before getting green cards and lack a clear path to residency in the U.S. While new proposals have garnered support, they haven’t been enacted into law. Some families continue to navigate the complexities of the immigration system to secure their children’s futures in the U.S. Aging out continues to be an important immigration issue for children. The legal team at North County Immigration understands the uncertainty parents and children feel, and we’re dedicated to exploring every possible solution to secure your child’s future in the U.S.

What Does “Aging Out” Mean in Immigration? 

Aging out in the immigration process means the child turns 21 before their green card application is approved. When a child ages out, they don’t meet the official definition of a child anymore for immigration purposes, which can make them lose their eligibility to stay in the country.

When A Child With an H4 Visa Turns 21, Do They Age Out? 

No, but a child with an H4 dependent visa loses their H4 status when they turn 21. Their H4 status expires when they turn 21 because they are no longer considered a child for H4 purposes. They aren’t a child in the eyes of immigration and, therefore, not an H4 dependent, and they can’t legally remain in the U.S. without changing their status and going through the legal process of immigration to stay in the U.S. 

What Causes Delays in Green Card Processing? 

Green card processing for kids can take a long time, sometimes years, and the high volume of pending applications creates backlogs, which increase the risk of a child aging out prior to a decision being made. Changes in administrative policies can cause delays in getting a kid a green card, as well as the workload of USCIS. The complexity of cases is involved, and for some kinds of visas, there is a limit on the amount of available visas annually. 

What Happens If Your Child Turns 21 During Green Card Processing

The Child Status Protection Act was designed by the U.S. Congress to protect children from aging out by creating a formula to calculate your child’s CSPA age and freeze their age during the immigration process. It doesn’t set a specific age to allow immigration; it simply recalculates it. Because of this, they’re still considered a child even if they technically reach age 21. Even if they‘re eligible, there are strict rules about how quickly you must pursue the green card once it’s available. A knowledgeable immigration attorney can evaluate your child’s CSPA age and eligibility while helping you protect their immigration status.

Eligibility for CSPA Protection After Turning 21

A qualifying relationship can make a child eligible for CSPA protection after turning 21. They must be the beneficiary of a family-based immigrant visa petition, Form I-130, filed by a U.S. citizen or lawful permanent resident parent. CSPA protection may also apply to children seeking asylum or refugee status or those who can get a visa under their parents’ employment-based petition. 

If the parents filed their petition with USCIS before their child’s 21st birthday, they can be deemed eligible as long as they’re unmarried. The child also must start to seek to acquire lawful permanent resident status within one year of when a visa becomes available. 

Steps to Protect Child Visa Status If Turning 21

If you want to protect your child’s visa status and they’re turning 21, gather their documents, including their green card application, their birth certificate, and any communications from USCIS. 

For your child to be CSPA eligible, they must take the steps to seek to acquire lawful permanent resident status within one year of when a visa becomes available. You should monitor their visa availability status and dates. This information can be found in the U.S. Dept. of State visa bulletin. 

To prove a child is “seeking to acquire” permanent resident status:

• File I-485: Submit a complete application with all required documents.
• Respond to RFEs: Promptly and thoroughly answer requests for evidence.
• Attend Biometrics: Appear for scheduled fingerprinting and photos.
• Maintain Their Status: If applicable, keep a valid non-immigrant status.
• Demonstrate Intent: Provide evidence of intent to reside permanently in the U.S.
• Get Legal Representation: Work with an immigration attorney.
• Act Timely: Take required actions within the deadlines.

How to Calculate CSPA Age for Green Card

To calculate CSPA age, use this CSPA age calculator: 

CSPA Age = Age at Visa Availability – Time Petition Was Pending

If it’s under 21, the child may still be officially considered a child for immigration, even if their actual age is older.

How to Appeal Green Card Denial Due to Aging Out

To appeal a green card denial due to aging out:

• Review Denial: Understand the reason for denial. It should give the reason for the denial, which is the basis for your appeal. 

• Assess CSPA Eligibility: Determine if your child qualifies and figure out their CSPA age. Ask your attorney to help you do this. 

• File Motion: Ask your attorney to see if you can submit a Motion to Reopen or Reconsider.

• Gather Evidence: Collect your supporting documents and explain why your child meets CSPCA requirements. 

• Meet Deadlines: Adhere to filing deadlines because not doing so can jeopardize your appeal. 

• Consult With An Attorney: You need skilled legal representation because immigration cases are complex.

• Explore Further Appeals: Consider other appeal options and discuss them with your attorney. 

What Happens When F2A Child Ages Out

When an F2A child ages out by turning 21 during green card processing, their eligibility is jeopardized. It’s common for kids with F2A visas to age out because of FSA visa processing time that has limits before visas become available. While the F2A visa is for spouses and unmarried children under 21 of green card holders, the CSPA freezes the child’s age for immigration purposes, allowing them to stay eligible even after turning 21 despite aging out.

Alternative Visas for Children Who Age Out of Green Cards

If a child ages out of green card eligibility, consider these alternatives:

• F-1 Student Visa: For those pursuing U.S. education.
• Employment-Based Visas: If they have specialized job skills.
• Family-Based Options: See if they’re eligible through other family members.
• Humanitarian Options: Asylum, refugee status, or other visas.

Eligibility for Green Card Expedited Processing Due to Aging Out

USCIS expedites some green card applications to prevent children from aging out when they turn 21 and lose eligibility as a child. But adjusting age doesn’t apply to every situation. If an applicant is at risk, they can request expedited processing from USCIS. Also, contact your visa immigration lawyer if you want to request help with expedited applications. 

Why It’s Important to Act Quickly When Aging Out is a Risk

Acting quickly when aging out is important because of:

• CSPA deadlines: When deadlines are missed, it can mean lost benefits.
• Changes in laws: Delays may alter your case if the laws change. 
• Available Visas: Aging out might mean losing your priority date.
• Loss of status: Dependent status can be lost, creating legal problems.
• Building a case: Gathering evidence takes time.
• Limited options:  Your options may be reduced later. 
• Peace of mind: Acting quickly can lower your stress.

Contact North County Immigration for Legal Help 

If you’re worried about your child aging out, our immigration lawyer has the expertise to help with green cards. Our North County Immigration lawyer can clarify these complex topics and help you find the best solution to ensure your child stays safe, and has the proper legal documentation. We want you to have peace of mind knowing we’re here to support you.  Reach out to us, and we’ll set up a consultation. 

By Anna M. Hysell

Ms. Hysell is the founding and managing attorney of North County Immigration. After graduating from law school at the University of Wisconsin and getting several years of experience, Ms. Hysell returned to her native Southern California to open an office in North San Diego County to serve clients from the Bay Area to the Mexican Border. She frequently speaks at law conferences, law schools, and workshops providing training to other lawyers. Ms. Hysell is committed to representing individuals with the resolve, compassion, ethics, and values she believes everyone deserves.