Age Out

"Age Out" arises in a situation when a “child” applies for an adjustment of status, or consular processing, and during the processing of the application the "child" turns 21 years of old, and becomes ineligible to become a permanent resident of the U.S.

Under immigration law, a “child” is defined as an unmarried person under the age of 21, who is a:

  • Child born in wedlock (formerly called legitimate child)
  • Step-child, whether legitimate or not, as long as the child was under 18 when step-relationship was created
  • Child legally legitimated before 18 if in custody of father at time of legitimization.
  • Child born out of wedlock where relationship is either with the mother or with the father if, in the case of the father, a bona fide parent-child relationship exists.
  • Children adopted before 16, and having 2 years legal custody and residence with adopting parent. However, if the family has already adopted a sibling, the second brother or sister who is adopted may be under 18 at time of adoption.
  • Certain orphans

In many instances, an alien child is eligible for immigration benefits if he/she is the child of a U.S. citizen or permanent resident, the child of a beneficiary to an immigrant petition, or a derivative beneficiary of a parent's employment based immigration or family based immigration petition, in some situations. A child who turns 21 before his/her application for adjustment of status or application for immigration visa is adjudicated has "Aged Out", and has lost his/her eligibility for a Green Card under the old laws.

However, the "Child Status Protection Act" (CSPA) has changed the scenarios in which "Age Out" applies, preventing some child applicants from "aging out" under certain circumstances. Congress recognized that many beneficiaries were “aging out” because of large backlogs and long processing times for visa petitions. Therefore, Congress passed the act, and the CSPA went into effect on August 6, 2002 and applies to beneficiaries of a pending or approved visa petition that was filed on or after that date. Furthermore, the CSPA is designed to protect a beneficiary’s immigration classification as a child when he/she “ages out” due to excessive processing times. The CSPA can protect a beneficiary’s “child” status for family-based, employment-based, and even some humanitarian program immigrants.

While the CSPA can help to prevent child applicants from aging out due to large backlogs and long processing times for visa petitions, it is important to note that children applying for CSPA protection must be the beneficiary of a pending or approved visa petition on or after August 6, 2002, must not have had a final decision on an application for adjustment of status or immigrant visa before August 6, 2002, and must “seek to acquire” permanent residence within 1 year of a visa becoming available. USCIS defines “seek to acquire” as having a Form I-824 (Application for Action on an Approved Application or Petition) filed on the child’s behalf or the filing of a Form I-485 (Application to Registered Permanent Residence or Adjust Status) OR submitting Form DS-230 (Application for Immigrant Visa and Alien Registration) with the Department of State. The date of visa availability means the first day of the first month a visa was listed as available in the Department of State’s visa bulletin or the date the visa petition was approved, whichever is later. Thus, it is important to take these steps as soon as possible to ensure that a child will be considered eligible under CSPA. That being said, the Department of State has accepted a wider interpretation of what actions will be considered “seeking to acquire” permanent residence, so certain other steps to establish permanent residence could be accepted under this definition.  If you have a question regarding your child’s eligibility for CSPA, please contact us at

For more information regarding the Child Status Protection Act and child immigration benefits and procedures, please click on one of the following topics: