Age Out Issues under the Rule of Concurrent Filing and CSPA


The "Child Status Protection Act", effective August 6, 2002, addresses the problems of minor children losing their eligibility for certain immigration benefits as a result of USCIS processing delays. Prior to the passage of this law, a child's eligibility in Employment-Based Immigration situations to be a part of his/her parent's application as a derivative beneficiary was based on the child's age at the time that the child's I-485 was adjudicated or the child’s consular processing was adjudicated. Due to the enormous backlogs and processing delays, many underage children turned 21 before their I-485 applications or immigrant visas were adjudicated. In such cases, the children "age-out" and are no longer considered to be part of the parent's application, and lose their eligibility to obtain Green Cards as a derivative beneficiary.

Children who otherwise would have aged-out may successfully adjust their status through the new Concurrent Filing Rule and the "Child Status Protection Act." According to the CSPA," the eligibility of children applicants will be determined by their age at the date a visa number becomes available to them, minus the number of days that the Employment-Based immigration petition was pending. Furthermore, these children must file for permanent resident status within one year of such availability.

To put it simply, if a child is under 21 years old and file his I-485 along with his parent’s I-485 and if his parent I-140 is approved later on, the child is protected under the CSPA and will not be aged out.

For a clearer illustration of this rule, please see the different scenarios below.

Example 1:

The Labor Certification application that was submitted on John's behalf on January 1, 2010 was later approved on December 31, 2010. Afterwards, his employer submits an I-140 (EB-2) immigration petition on John's behalf on January 1, 2012. John and Junior filed I-485s along with John’s immigration petition. At that time, John's son, Junior, is 20 years and 7 months old. John's I-140 petition was pending for six months and was approved on July 1, 2012. Under the old law without the Child Status Protection Act, Junior would be considered “aged out” because he is now 21 years old. However, under the CSPA law, his age is fixed as of the date that he filed his I-485 along with his father’s I-140. Thus, although he was already 21 years and one month on July 1, 2002, he is still considered a "child" for purposes of adjusting his status to permanent resident. The length of time that is takes the USCIS to adjudicate Junior's I-485 case is no longer important thanks to the CSPA.

Example 2:

Dr. Kim, who was born in South Korea,  filed his I-140 immigration petition (NIW) and his I-485 concurrently on June 1, 2012, under the Concurrent Filing Rule.  Dr. Kim's son, Young, is 21 years and one month old at the time of filing. Young cannot file his I-485 with his father because he is aged out.

Example 3:

Howard's daughter, Rachel, is 20 years and 10 months old. Howard filed his I-140 immigration petition (NIW) on June 15, 2012. According to the I-140 and I-485 Concurrent Filing Rule, Howard and Rachel filed their I-485 concurrently with the I-140 petition since visa numbers were available for Howard at that time as Howard was born in Nepal. Thus, according to the "Child Status Protection Act," no matter how much time Howard's I-140 is pending or how long Rachel’s I-485 is pending; Rachel will not age out if Howard’s NIW is approved later on.

With the new Concurrent Filing rule, any person who is a beneficiary (or applicant) of an I-140 petition that has already been filed  , is now eligible to file the I-485 application as well. Family members will be eligible to file the I-485 along with the principal alien. However, this can only be done if visa numbers are available at the time of filing.

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