Immigration FAQ - Law Firm John Philip Foley Law Office Attorneys Boston, Massachusetts

Answers to Questions About the Child Status Protection Act

The Child Status Protection Act is designed to protect children who apply for permanent residence, but turn 21 before a final decision is reached by United States Immigration Services (USCIS) or the State Department. The Act was signed into law by President Bush in August 2002.

Does the law apply to all applications for permanent residence?
Subject to certain limitations, the Child Stats Protection Act applies to family-based, employment-based and visa lottery applications for permanent residence.
What is the object of the law?
Children under 21 years of age may be entitled to immigrations benefits that individuals over 21 years of age are not entitled to. In some circumstances, children "age out" of benefits (turn 21) while a petition is pending. The Act is designed to prevent the "aging out" of those benefits. For example, children can immigrate with their parents until they are 21 years old. Also, if a child's parent(s) are U.S. citizens, the child is considered an "immediate relative" and may obtain a green card without any numerical limitations. However, once the child reaches 21 years of age, the child no longer qualifies as an "immediate relative," and must wait years for a green card hold. The law seeks to prevent the unnecessary separation of parents and children due to aging-out.
How does the law stop a child from aging-out?
Essentially, the law fixes, or freezes, the child's age based on a date relevant to the qualifying circumstances, such as on the date the petition is initiated, or the date a parent is naturalized. The best way to understand is by examples:
- Before the new law, a naturalized parent could only submit a petition for an I-130 visa for a child who obtained permanent residence prior to the child's 21st birthday. If he or she aged-out, or turned 21 before obtaining permanent residence, the petition would automatically convert to a category that required a waiting period of more than six years. Under the new law, the child's age is fixed on the day that the form I-130 visa petition is submitted by the parent. Though the child will be older than 21 years of age when permanent residence is granted, the child is still treated for immigration purposes as if he or she were under 21 years of age.
- A 19-year-old married son is petitioned by his U.S. citizen mother under the family-based 3rd preference category (married sons and daughters of U.S. citizens). A year later, the son and his wife obtain a divorce. The petition on his behalf automatically is converted to the immediate relative category. However, he does not apply for immigrant visa until he is 23 years old. Is it too late to apply as an immediate relative? Not under the new law. His age is fixed as of the date of the termination of the marriage.
Is it different if the petition is submitted under the one of the employment-based categories?
The calculations are more complex, but the law does accommodate situations where the child would age while petitions are pending.
Is there any provision of the new law which affects asylees and refugees?
If a child turns 21-years old before a parent's application for asylum or refugee status is granted, the new law allows the child to accompany the parent once the status is granted.

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