11. CHILD AGED-OUT?
DENIED FOR REACHING AGE 21?

It is the nature of children to grow up.
It is the nature of the Immigration Services to work slowly.

When these two forces of nature collide in the same case, it may lead to tragedy, in the form of separation of families even though one of the purposes of our immigration laws is to promote the unification of families.

The immigration law recognize a family unit as consisting of parents (or a parent) and children under age 21 and not married. Such a "unit" may immigrate together on the basis of one single petition. Also, an American Citizen or a Legal Permanent Resident (Green Card holder) may petition for his children, whether over 21 or under 21. But the children who are under 21 and not married would be classified in a higher category, and would get Green Cards much, much faster than the children who are over 21 or married. The difference could be many years. The separation between over and under 21 is made when the time arrives for issuance of Green Cards or Immigrant Visas, not at the time when the petitions are initially filed. Even if the children were under 21 when the petition for the parent (or for the child) was filed, but they get to be over 21 when the Immigration Services or the American Consuls are ready to issue the Green Cards or Immigrant Visas, the children would be denied.

In 2002 Congress provided a remedy and passed the "Child Status Protection Act", also known as "CSPA". This law introduced a concept of "freezing" the age of certain children at certain points, so that even after they reach 21, they are still treated as "children" for purposes of immigration. However, due to the restrictive and negative attitude of the U.S.CIS, many applicants end up with denials and are forced to appear in Immigration Court. (To read more about Immigration Court - click here 0).

The Child Status Protection Act (CSPA) is most generous towards children (under 21 and not married) who are petitioned by a parent who is an American Citizen, or who becomes an American Citizen while the petition is pending and the child is still under 21. The age of such children is "frozen" as of the date of filing the petition. When they are invited to accept their Green Cards or Immigrant Visas they are still considered and treated as under 21.

The CSPA provides lesser relief to children whose parents were petitioned by employers or relatives, while the children were under 21 and not married. The law "freezes" the age of the child, but not on the date the petition was filed: only on the date on which a "visa number" becomes available for the parent (which may be several years later). If on that date the child is already over 21, the law provides an age "discount", or age reduction, by the amount of time that the parent's visa petition (Form I-130 or Form I-140) was pending from its

filing to its approval. If the reduced age of the child is less than 21, the age is "frozen" - but only if an application is made on behalf of the child within one (1) year from the date on which a "visa number" became available for the parent. All this requires careful counting of days and some complicated computations. Parents who have children in "danger" of growing up too soon, should consult with an experienced immigration lawyer while their cases are still pending.

The CSPA provides another type of relief for children who aged out and are not able to enjoy the first two types of relief described above. This is known as the "retention" provision. However, the U.S. Citizenship and Immigration Services (CIS) is opposed to this kind of relief. The interpretation of the "retention" provision is waiting for a decision by a Federal Court of Appeals.

Many people believe that a child's luck in life depends on the date of birth. This seems to be true, at the very least, for the child's ability to get a Green Card or an Immigrant Visa.

The Child Status Protection Act (CSPA) is most generous towards children (under 21 and not married) who are petitioned by a parent who is an American Citizen, or who becomes an American Citizen while the petition is pending and the child is still under 21. The age of such children is "frozen" as of the date of filing the petition. When they are invited to accept their Green Cards or Immigrant Visas they are still considered and treated as under 21.

The CSPA provides lesser relief to children whose parents were petitioned by employers or relatives, while the children were under 21 and not married. The law "freezes" the age of the child, but not on the date the petition was filed: only on the date on which a "visa number" becomes available for the parent (which may be several years later). If on that date the child is already over 21, the law provides an age "discount", or age reduction, by the amount of time that the parent's visa petition (Form I-130 or Form I-140) was pending from its filing to its approval. If the reduced age of the child is less than 21, the age is "frozen" - but only if an application is made on behalf of the child within one (1) year from the date on which a "visa number" became available for the parent. All this requires careful counting of days and some complicated computations. Parents who have children in "danger" of growing up too soon, should consult with an experienced immigration lawyer while their cases are still pending.

The CSPA provides another type of relief for children who aged out and are not able to enjoy the first two types of relief described above. This is known as the "retention" provision. However, the U.S. Citizenship and Immigration Services (CIS) is opposed to this kind of relief. The interpretation of the "retention" provision is waiting for a decision by a Federal Court of Appeals.

Many people believe that a child's luck in life depends on the date of birth. This seems to be true, at the very least, for the child's ability to get a Green Card or an Immigrant Visa.

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