BIA Limits Benefits for Aged Out Children

Under the Child Status Protection Act (CSPA), a child who has turned 21 may under certain circumstances be still considered as under 21 for immigration purposes. Freezing the child’s age will reduce the green card wait by many years.

This occurs, for instance, when a U.S. citizen parent petitions an unmarried child before he/she turns 21 but his/her adjustment of status or admission as an immigrant takes place after reaching 21.

It also occurs when a permanent resident parent is the beneficiary of a visa petition or files a visa petition for his/her child under 21. The number of days between the filing of the petition and the approval is subtracted from the child’s age on the date that the priority date of the child or the parent becomes current. If the difference is less than 21 years, the child benefits from the CSPA.

An additional requirement to avail of the CSPA benefit is that he/she must have sought to acquire the status of a lawful permanent resident within one (1) year of the visa number availability.

What happens if the child cannot meet the requirement for freezing his/her age at below 21?

The CSPA provides that if the age of the alien is determined to be 21 or older, the alien’s petition shall be automatically converted to the appropriate category and he/she shall retain the priority date issued upon receipt of the original petition.

This automatic conversion provision was favorably interpreted by the Board of Immigration Appeals (BIA) in the non-precedent decision of Matter of Garcia. In that case, Garcia was the derivative beneficiary of a family-based 4th preference petition filed on January 13, 1983 for her mother by her mother’s sister when Garcia was just 9 years old. When a visa number became available for her mother, she was already 22 and had aged out.

Her mother obtained an immigrant visa in 1996 and filed a petition for her in 1997. The issue was which priority date should be assigned to her petition “ January 13, 1983 or 1997? The BIA said that it was January 13, 1983 because the 1983 petition automatically converted to a second preference petition.

But last June 16, the BIA reached a different conclusion in the precedent case of Matter of Wang.

In that case, the father of Wang was the beneficiary of a 4th preference petition filed by his sister on December 28, 1992 when Wang was still 10 years old. In 2005, the father’s priority date became current and he became a permanent resident. Wang was 22 years old and had aged out.

Wang’s father filed a second preference petition for her and he requested that Wang be assigned a priority date of December 28, 1992. The BIA ruled that the automatic conversion provision of the CSPA did not apply because there was no available category to which the petition could be converted, as no category existed for the niece of a U.S. citizen. And the priority date retention did not apply because the 4th preference and the 2nd preference petitions were filed by different petitioners.

Her mother obtained an immigrant visa in 1996 and filed a petition for her in 1997. The issue was which priority date should be assigned to her petition “ January 13, 1983 or 1997? The BIA said that it was January 13, 1983 because the 1983 petition automatically converted to a second preference petition.

But last June 16, the BIA reached a different conclusion in the precedent case of Matter of Wang.

In that case, the father of Wang was the beneficiary of a 4th preference petition filed by his sister on December 28, 1992 when Wang was still 10 years old. In 2005, the father’s priority date became current and he became a permanent resident. Wang was 22 years old and had aged out.

Wang’s father filed a second preference petition for her and he requested that Wang be assigned a priority date of December 28, 1992. The BIA ruled that the automatic conversion provision of the CSPA did not apply because there was no available category to which the petition could be converted, as no category existed for the niece of a U.S. citizen. And the priority date retention did not apply because the 4th preference and the 2nd preference petitions were filed by different petitioners.