Many aliens are concerned about their children's "aging out" during their employment-based immigration process. In most cases, as a derivative beneficiary of his/her alien parent’s immigration petition, the alien child is protected by the CPSA from aging out. Basically the same rules introduced above section on children of Permanent Residents apply here.
· Determination of the Age of the Alien Child
In accordance with the CSPA, the age of the alien child is determined on the date on which an immigrant visa number becomes available in his/her parent's immigration petition, subtracted by the number of days the petitions were pending with the USCIS.
The formula for calculating the age of the alien child involves two dates:
(1) the age of the alien child on the date on which an immigration visa becomes available for his/her parent's immigration petitions; and
(2) the number of days the immigration petition is pending
The age of the alien child = (1) - (2)
For example:
Frank filed an I-140 petition under the EB-2 "National Interest Waiver" category when his son, Matt, is 20 years, 11 months old. The case is approved after 6 months; and at that time, Matt is 21 years and 5 months. The immigrant visa numbers for EB-2 NIW applicants became available immediately at the approval time of Frank's immigration petition. Matt's age is reduced by 6 months, which equals 20 years 11 months. As a derivative beneficiary of Frank's I-140 immigration petition, Matt's age is locked at 20 years 11 months. Matt can file his I-485 to apply for adjustment of status.
· Acquiring Permanent Resident Status
In order to take advantage of the CSPA, Matt has to apply for adjustment of status within one year of the visa number becoming available.
Consider another example:
Donald files an I-140 petition under the EB-1(A) "Alien of Extraordinary Ability" category when his daughter Mary is 20 years, 11 months old. The case is approved after 6 months, at which time, Mary is 21 years and 5 months old. The immigrant visa numbers become available at the time Donald's immigration petition is approved. Mary's age is reduced by 6 months, which is 20 years 11 months. As a derivative beneficiary of Donald's immigration petition, Mary's age is locked at 20 years 11 months.
· Retention of Priority Date
If the age of an alien is determined under the above calculation to be 21 years or older, the alien's petition shall automatically be converted to the appropriate family-based immigration category and the alien shall retain the original priority date issued upon receipt of the original petition.
For example:
The Labor Certification application that was submitted on John's behalf on January 1, 2000 was later approved on December 31, 2000. Afterwards, his employer submits an I-140 (EB-2) immigration petition on John's behalf on January 1, 2002. 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, 2002, when Junior is 21 years 7 months. The visa number for EB-2 was available for John on July 1, 2002. Under the CSPA, Junior’s age is fixed as of the date that a visa number becomes available minus the number of days that the I-140 was pending. Because John’s I-140 was pending for six months, these six months are subtracted from Junior’s age at the time the visa number became available on July 1, 2002. Subtracting six months from Junior’s age of 21 years, 7 months on July 1, 2002, Junior’s age is fixed at 21 years and 1 month. Even with the Child Status Protection Act, Junior still ages out and may not adjust his status at this time. However, he will automatically be reclassified to an appropriate category, family-based 2B, and retain his father’s original priority date, January 1, 2000, which is the date John’s employer filed John’s Labor Certification application.
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