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Can Immigrants Over 21 Qualify As Children For Green Cards?

QUESTIONS AND ANSWERS

My Cousin Is Over 21. Does He Still Qualify As A Child
For A Green Card Through His Mother?

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Question:

“I have a cousin who is 23 years old. His mother was born in India. Many years ago, she filed an immigration petition for him. Now, it’s time for him to finally complete his paperwork for a green card. We’ve been told that since my cousin is now over 21, he no longer qualifies. Someone else told me this is not true. Can you tell me who is right?”

(Submitted by Alex P., National City, CA)

Answer:

Well, it’s possible they’re both right. It depends on the facts of your cousin’s case.

The confusion between the two opinions appears related to a program known as the Child Status Protection Act (CSPA).

Under this law, some immigrants, who have already turned 21, can still qualify as children when it comes to seeking permanent resident benefits.

Without going into too much detail, here is why the Child Status Protection Act was passed.

Sometimes, the government takes a long time to process the paperwork of immigrants. For children, these delays can cause them to lose their eligibility for green cards when they turn 21 years old. This is called “aging-out”. The Child Status Protection Act was designed to help correct this problem.

Under the CSPA, dates are very important. I’ll use imaginary dates to help explain the basic details how the program works.

  • First, what is your cousin’s exact date of birth? Let’s use November 12, 1990.
  • Second, when did his mother file the immigration petition for him? Let’s pretend the date was August 4, 2005. This is the priority date.
  • Third, when was the petition approved? Here, we will use February 4, 2007.
  • From August 4, 2005 to February 4, 2007 is 18 months. This is considered the period of delay.
  • You can add the 18 months to your cousin’s date of birth. This gives him an “adjusted date of birth” of April 12, 1992.
  • Under this rule, he turns 21 on April 12, 2013.
  • Now, let’s say his priority date to apply for a green card becomes “good” in October 2012.
  • Under CSPA, because of his “adjusted date of birth,” he does not turn 21 under April 12, 2013. So he is still under 21 in October 2012 for immigration purposes. His mother’s petition for him as a child is still valid.
  • Your cousin’s true age is 21 on November 12, 2011. This means in October 2012, he would be almost 22 years old. Without the help of the CSPA, he would be disqualified for a green card as a child.

Please realize this is a very simple example.

This area of law is quite complicated. In the past few months, there have been major changes to how the CSPA applies to immigrants who fit into different categories.

Thus, I caution you to talk to an immigration green card expert about the specifics of your cousin’s case before going forward.

By Carlos A. Batara

(Filed Under Q&As: Green Cards And Permanent Residence)

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