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Immigration Law Question: I-130: Child under 21

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  • Immigration Law Question: I-130: Child under 21

    Got a very time sensitive question today.

    My friend is about to file an I-130 to sponsor his child, unmarried under age 21, from the Philippines. However she is age 20 and will be 21 in January 2013.

    It appears he would file at the end of this month or early June.

    Question: does the daughter have to be under 21 AT TIME OF FILING or AT TIME OF ARRIVAL?

    (As a side note, this child is close to earning R.N. status there and so I know she would also be able to sponsor herself for a work visa leading to green card. However, as a matter of emotional pride, Dad would like to sponsor her as family -- if that would work.)

  • #2
    The Immigration and Nationality Act (INA) defines a “child” as an unmarried individual under 21 years of age. Children are generally eligible for a derivative status until 21 years of age. For example, a child with parents on H-1 status may remain in H-4 status until age 21. For these individuals, 21 is a more significant age than 18. For most nonimmigrant statuses, the end point for children is 21.

    At that time, if the child wishes to remain in the U.S., she or he must secure and maintain his or her own status. This matter should be addressed well in advance of the 21st birthday, in order to plan ahead and take any needed action.

    The "age out" arises in some situations where children applicants apply for adjustment of status, consular processing, or naturalization. In many instances, alien children are eligible for immigration benefits if they are the children of U.S. citizen or permanent resident, or the children of a beneficiary to an immigrant petition. Under the immigration laws, a child is defined as an unmarried person under the age of 21.

    In these situations, if children applicants or beneficiaries reach the age of 21 and the applications for adjustment of status or applications for immigration visa are still pending, they lose their eligibility for a Green Card which they would have had, had they not yet attained the age of 21. Thus, children who turn 21 years old before their applications for adjustment of status or applications for immigration visa are decided are "age out". As a result, they may not enjoy immigration benefits they originally petitioned for while they were still minors.

    If a person filing for Green Card application is 21 or less and unmarried, he or she will be able to file as a child. However, if the child’s parents are legal permanent residents, not U.S. citizens, there is the danger of “aging out.” Even after the papers are filed for permanent residency, it can take many months or even years to officially register the adjustment of status. In the meantime, the person could turn 21, and no longer qualify as a child, thus “age out.” Now, he or she must start all over again to file as an adult.

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