Age-Out Problems under the Rule of Concurrent Filing and the "Child Status Protection Act"

The "Child Status Protection Act", which was passed by Congress on 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 part of his or her parent's application, as a derivative beneficiary, was based on the child's age at the time the child's I-485 was adjudicated. Due to enormous backlogs and processing delays, many children turned 21 before the USCIS adjudicated their I-485 applications. In such cases, the children "age-out" and are no longer considered to be a part of the parent's application, thus losing their eligibility to obtain green cards as derivative beneficiaries.

Children, who otherwise would have aged out, may successfully adjust their status through the additional interplay of the new Concurrent Filing rule and the "Child Status Protection Act." According to the "Child Status Protection Act" (CSPA), the eligibility of these aging-out children will be determined by their age on the date a visa 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. 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, 2011 was later approved on December 31, 2011. Afterwards, his employer submitted an I-140 (EB-2) immigration petition on John's behalf on January 1, 2012. At that time, John's son was 20 years and 7 months old. John's I-140 petition was pending for six months and was approved on July 1, 2012; one month after Junior turned 21 years of age. The visa number for the EB-2 was available for John 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 new law, his age is fixed as of the date that a visa number becomes available, minus the number of days that the I-140 was pending. Since John's I-140 was pending for six months, these six months must be subtracted from Junior's age at the time the visa number became available on July 1, 2012. Subtracting six months from Junior's age of 21 years and one month on July 1, 2012, Junior's age is fixed at 20 years and 7 months. Thus, even though he was already 21 years and one month on July 1, 2012, he is still considered a "child" for purposes of accompanying his parents in adjusting his status to permanent resident. However, Junior has to file his I-485 within one year from the date of the I-140 approval, before July 1, 2013. The length of time that it takes the USCIS to adjudicate Junior's case is no longer important in these cases.

According to the "Child Status Protection Act", if through the above calculation, the child's age is fixed at 21 or older, the child would be automatically reclassified to an appropriate category and would retain the principal beneficiary's original priority date. Please see the next example below

Example 2

Consider the same facts as above, except in this case Junior is 21 years and seven months old at the time of John's I-140 approval. Since John's I-140 was pending for six months, Junior's age will be fixed at 21 years and one 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, 2011, which is the date John's employer filed John's Labor Certification application.

Example 3

Richard filed his I-140 immigration petition (NIW) on August 1, 2012. Richard's son, Simon, is 21 years and one month old. According to the new I-140 and I-485 Concurrent Filing Rule, Richard filed his I-485 because the visa number was currently available for Richard at that time. However, Simon cannot file his I-485 with his father because he aged out.

Example 4

Howard's daughter, Rachel, is 20 years and 10 months old. Howard filed his Form I-140 immigration petition (NIW) on August 1, 2002. According to the new I-140 and I-485 Concurrent Filing Rule, Howard and Rachel filed their I-485 since the visa number was available for Howard at that time. Thus, according to the "Child Status Protection Act," no matter how much time Howard's I-140 is pending, Rachel will not age out.

Visa numbers are currently available to all EB-1, EB-2, and EB-3 categories. Thus, with the new Concurrent Filing rule, any person who is a beneficiary (or applicant) of an I-140 petition that has already been filed or is filing the I-140 at this time is now eligible to file the I-485 application as well. Family members will be eligible to file an I-485 along with the principal alien. However, since the Concurrent Filing rule became effective, visa numbers may become unavailable in the future because more eligible aliens will be filing their Form I-485s. Thus, eligible aliens with aging-out children should file their I-485 application as soon as possible. Please see next example.

Example 5

Jenny filed her I-140 immigration petition (NIW) on August 10, 2011. Jenny has a son, Benny, who is 20 years and eleven months old. However, due to the new I-140 and I-485 Concurrent Filing Rule, many aliens have filed their I-140 and I-485 together and the visa number for EB-2 has been exhausted. Furthermore, the visa number will not be current until December 2011 when Benny will be 21 years and three months old. If Jenny's I-140 is pending for six months and will be approved in February 2012, these six months will be reduced from Benny's age in December 2011 when he is 21 years and three months old. Thus, his age is fixed at 20 years nine months. However, if Jenny's I-140 petition is pending for only two months and will be approved in October 2011, Benny's age will be fixed at 21 years and one month. Thus, Benny ages out in this scenario and must wait until his priority date under the family-based 2B immigration category becomes current.

Example 6

Jason filed his I-140 immigration petition (NIW) on June 30, 2011. Jason has a son, Ken, who is 20 years and ten months old at that time. According to the visa bulletin, an immigration visa number became available for Jason on July 31, 2011. Ken was 20 years and eleven months old on July 31, and he was not in the U.S. but in his home country. Due to the I-140 and I-485 Concurrent Filing Rule, Jason filed his I-485 on August 10, 2011 If Jason's I-140 is pending for 6 months until December 31, 2011, one month should be subtracted from Ken's age. Thus, Ken's age is fixed at 20 years and 10 months. Ken may apply for his immigrant visa through Consular Processing at a U.S. Consulate in his home country.

(Updated 10/9/2012 by AD)

For more information aboutConcurrent Filing of I-140 and I-485, please click one of the following topics: