Unmarried children are eligible to file for lawful permanent resident immigrant status ("LPR" status or a "green card") as derivative applicants for Adjustment of Status (AOS) with their primary applicant parent until they turn twenty-one. Congress enacted the Child Status Protection Act (CSPA) in 2002 to provide a benefit to children at risk of "aging out" (exceeding the age of 21 before obtaining LPR status) by modifying the way that USCIS determined the age of an applicant child.1 Since the Department of State (DOS) established the two-chart ("Dates for Filing" and "Final Action Dates") visa bulletin process from October 2015 until earlier this year, the CSPA calculated a child's age as "visa availability date" (when current per the Final Action Date Chart) less the amount of time the immigrant petition (Form I-140, I-130 for example) was pending with USCIS.
On February 14, 2023, U.S. Citizenship and Immigration Services (USCIS) announced a policy change for redefining when a visa "becomes available" for calculating a child's age under CSPA.2 Under the new policy, a visa becomes available when an applicant either (1) has the ability to file for an Application to Register Permanent Residence or Adjust Status (Form I-485) under either the "Dates for Filing" or "Final Action Date" chart and seeks to acquire LPR status within the requisite timeframe, or (2) if the I-140 and I-485 petitions are filed concurrently and the underlying immigrant petition is approved after filing the I-485 application, then on the date the petition is approved.3 The Final Action Date Chart is no longer required to be current for an applicant child's age to be locked in under CSPA. Under the new policy, once a derivative child files for Adjustment of Status (AOS) under either chart, their CSPA age is considered their age at the time the visa became available less the amount of time the underlying immigrant petition (Form I-140, for example) has been pending. This is welcome news for the protection of aging out children, especially given the lengthy delays in processing times for all stages of the green card application process.
However, in recent months there has not been a large movement in priority dates under the Dates for Filing Chart. The retrogression of priority dates under the Dates for Filing Chart means there are still many dependent children unable to take advantage of the policy change for CSPA. Unmarried children will continue to lose their nonimmigrant status derived from their parents upon turning 21. Below are some scenarios for clients whose child may not be able to take advantage of filing an AOS before turning twenty-one.
I plan to file my AOS soon but have a child who is outside of the US. They are unable to enter the US before they turn twenty-one. Are there steps to apply for a green card before they age out (turn twenty-one)?
If you are the primary applicant of an AOS and your child is unmarried, not yet twenty-one, and overseas, I would recommend consulting with an immigration attorney to file a Form I-824 concurrently with your Form I-485 (AOS) application. While the policy change was only announced by USCIS and not DOS, there is a compelling argument that the intention of CSPA and USCIS's policy change is to protect as many children from long processing delays which would prevent them from obtaining their green card. Further, this USCIS policy update is not inconsistent with DOS's initial intent in creating the two-chart visa bulletin system.
My child is here on an L-2/H-4 and is studying at a US university. Their twenty-first is approaching, and priority dates have not progressed enough for us to file an AOS. What options are available to allow them to continue with their studies once they turn twenty-one and lose L-2/H-4 status?
If your child is studying in the US based on a nonimmigrant worker dependent visa but will soon turn twenty-one, they should file a change of status to a student visa, such as F-1, to prevent any disruption in their education. The change of status to F-1 would allow them to continue their studying at the university in the US.
My child has or will be graduating from a US university, but we are unable to file the AOS before they turn twenty-one. What options are available for them to remain in the US?
A child who has already completed their studies before turning twenty-one may find a sponsoring employer to secure their own temporary work visas. If they are currently in the US in F-1 status, they may obtain work authorization through OPT (Optional Practical Training) or STEM OPT after graduation. This will allow them additional time to find a sponsoring employer.
1. See Pub. L. 107-208 (PDF) (August 6, 2002).
2. See https://www.uscis.gov/newsroom/alerts/uscis-updates-child-status-protection-act-cspa-age-calculation-for-certain-adjustment-of-status
3. See https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-7
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.