Family immigration in the U.S. can be quite intricate, particularly when it comes to children who may “age out” before their application for lawful permanent resident (LPR) gets approved. The Immigration and Nationality Act (INA) defines a child as an unmarried person under 21 years old. If a child turns 21 years of age, he or she will no longer be classified as a child for immigration purposes, and thus, not eligible for certain family-based immigration benefits
To address the aging out issue, Congress enacted the Child Status Protection Act (CSPA), effective August 6, 2002. The CSPA does not alter the definition of a child but provides a method to calculate a person’s age for immigration purposes, referred to as “CSPA age.” Individuals whose CSPA age is less than 21 will maintain their child classification even if their actual age is 21 or older. It is worth noting that CSPA does not change the requirement that you must be unmarried to remain eligible for classification as a child.
The CSPA covers various visa categories, including family-sponsored, employment-based, diversity visa (DV), and humanitarian categories. While the CSPA offers some relief, navigating these complexities demands a solid grasp of the regulations and careful planning.
How to Calculate CSPA Age?
1. Asylees and Refugees
For derivative asylees, the CSPA age is determined based on the age at which the principal asylee parent filed Form I-589. If the applicant was under 21 at the time of the filing, their age is effectively “frozen” at the date of filing and they will not age out.
For derivative asylees, the CSPA age is determined based on the age at which the principal asylee parent filed Form I-589. If the applicant was under 21 at the time of the filing, their age is effectively “frozen” at the date of filing and they will not age out.
2. Immediate Relatives
For immediate relatives of U.S. citizens, CSPA age is calculated as of the date the Form I-130 is filed. If the applicant is under 21 at that time, they will not age out, provided they remain unmarried.
3. For Family and Employment-based Immigrants
For family or employment-based preference, or DV applicants, the CSPA age is calculated using the following formula:
CSPA Age = Age on Visa Available Date – Pending Time
Pending Time = Date Petition Was Approved – Date Petition Was Received by USCIS
The visa availability date is the later of:
- The date the petition was approved, or
- The first day of the month when USCIS considers a visa available based on the immigrant preference category, country of chargeability, and priority date.
For example, if a child is 17 years old when his parent files an I-130 immigrant petition, and that petition remains pending for three years and is approved when the child is 20. Three years later, when the child is 23, his priority date becomes current. However, since the petition was pending for three years, the child’s CSPA age is only 20 at the time the visa becomes available. Thus, the child is eligible to apply for a Green Card.
“Sought to Acquire”Requirement
To benefit from the CSPA age calculation, family-sponsored and employment-based preference, as well as DV adjustment applicants, must seek to acquire lawful permanent residence within one year of when a visa becomes available. This requirement does not apply to derivative refugees, asylees, or immediate relatives of U.S. citizens. USCIS generally interprets “seek to acquire” as either filing Form I-485 (Application to Register Permanent Residence or Adjust Status) or submitting Form DS-260 (Application for Immigrant Visa).
Extraordinary Circumstances
Adjustment applicants who do not meet the “sought to acquire” requirement within one year of visa availability may still benefit from the CSPA if they can demonstrate that their failure to comply was due to extraordinary circumstances
To establish extraordinary circumstances, the applicant must show that:
- The circumstances were not caused by their own actions or inactions;
- The circumstances directly impacted their ability to seek adjustment within the one[1]year period; and
- The delay was reasonable under the circumstances
Examples of extraordinary circumstances that may justify a favorable exercise of discretion include serious illness or disability of the applicant, legal disabilities affecting the applicant during the one-year period, or instances where a timely adjustment application was rejected by USCIS as improperly filed but was corrected and re-filed within a reasonable time
Special Considerations
1. H4 Children
As dependent on H1B visa holders, children on H4 visas are particularly vulnerable to aging out. If these children turn 21 before the H1B visa holder obtains a green card, they will lose their dependent status. The age-out issue for H-4 children is particularly concerning, especially given the lengthy processing times for transitioning from H-1B visa to a green card.
2. Employment-based Petition
In the case of an employment-based petition, the filing date of the labor certification application is irrelevant for computing a child’s CSPA age. According to the USCIS memorandum, the “period during which the applicable petition was pending” for the I-140 is calculated from the date the I-140 petition was properly filed (receipt date; not priority date) until the final approval date, including any period of administrative review.
If you’re unsure whether your child is eligible for LPR status, or if you need help determining the best application strategy or preparing the necessary paperwork, it’s advisable to consult an immigration lawyer.
FAQs
Aging out" refers to when a child beneficiary of a family-based or employment-based green card petition turns 21 before their visa is issued, making them ineligible for certain immigration benefits as a child under U.S. immigration law.
CSPA subtracts the time a visa petition (Form I-130 or I-140) was pending from the child's biological age at the time of visa availability. If the adjusted age is under 21, the child may qualify for protection.
CSPA applies to immediate relatives (IR), family preference (F1, F2A, F2B, F3, F4), and employment-based petitions, but it does not apply to K-1 fiancé visa beneficiaries.
Without CSPA protection, once a child turns 21, they lose eligibility as a derivative beneficiary and may need a separate petition filed under the F2B category (adult children of green card holders), leading to longer wait times.
If your child's CSPA-adjusted age is under 21 when Form I-485 is filed, they will remain protected. However, if they turn 21 before filing, they may lose eligibility unless an exception applies.
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Zechen Feng
Zechen Feng is the founder and principal attorney at Feng Immigration Law, where he is dedicated to helping individuals and families navigate the U.S. immigration system with clarity and confidence. With extensive experience in immigration law and a personalized approach to every case, Zechen is passionate about advocating for his clients’ rights and futures. Through the blog, he shares practical guidance, legal updates, and expert insights to empower those on their immigration journey.
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