My child is a derivative on my green card process, but he is turning twenty-one very soon. Should I be concerned?

Yes, your child could be in danger of "aging out." The “age out” issue is governed by the Child Status Protection Act (CSPA). Before CSPA, a child who turned 21 before approval of the relevant immigration application would “age-out,” meaning they would lose their preferential immigration status as a “child” under the INA. There was no protection for children who turned 21 before approval, even due to agency delays and visa backlogs. CSPA basically serves to freeze the age of the child at an earlier date in the immigration process, thus preventing an “age out” in only some cases. If or when the age of the child is “frozen” often depends on a variety of factors.

For example, CSPA generally applies only to children who turn 21 after August 6, 2002. There are some exceptions written in the law, where the petition was pending or the immigrant visa/adjustment of status application was pending or had not yet been filed. Additionally, please note that the CSPA protections do not extend to most temporary visas.  This post addresses only the green card process.

For children of lawful permanent residents or derivative children of family-based, employment-based, or diversity visa processes, there is the following formula to determine whether a child has "aged out."

1. First, determine the child’s age at the time a visa number becomes available. This is either the first day of the month that the DOS Visa Bulletin records the priority date as current OR the petition approval date if the priority date was already current as of the petition approval.

2. Second, subtract from this age the number of days the petition was pending. In family-based cases, we subtract the entire period from the priority date to the petition approval. In employment-based cases, we subtract the entire period from when the I-140 petition was filed to when it was approved. In diversity visa cases, we subtract the entire period between the first day of the diversity visa mail-in application and the date on the letter notifying the principal applicant that the application was selected.

Note that the beneficiary must seek lawful permanent resident status within one year of visa availability.