Children of US Citizens: How to Avoid Aging Out

April 8, 2018

 

 

The Child Status Protection Act (CSPA) went into effect on August 6, 2002 and amended the Immigration and Nationality Act by changing who qualifies as a “child” for immigration purposes. The CSPA allows certain beneficiaries to remain classified as “children” even though they reached 21 years of age and will never “age out.” What “age out” means: Before CSPA came into effect, if your child became 21 at any time before receiving permanent residence he or she could not be considered a child for immigration purposes.

 

If you are a US citizen and have children they may benefit from the CSPA. In order to qualify for it, you must file an I-130 Visa petition for your children before they turn 21. If so, they will never age out. Your children will stay immediate relatives as long as they do not marry. There is no time limit on when they must apply for adjustment of status.

 

However, if your child has his own children, then you may want to consider changing to 1st preference because as an immediate relative your child cannot include his derivative beneficiaries. In other words, your child cannot immigrate with his children. Your child’s children would have to wait until your child became a resident, then your child will be able to petition his children. However, preference petitions allow derivative beneficiaries, so if your child immigrates as a 1st preference immigrant,  your child can immigrate with his children. CSPA allows your child to opt out of it, so if he wants, he can change to 1st preference, which would allow his children to immigrate as derivative beneficiaries.

 

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