The Immigration and Nationality Act (INA) Section 201 (f)(l) allows the beneficiary of an immediate relative (immigrant) visa petition to retain her/his status as a “child” of a U.S. Citizen even after the age of 21 so that the “child” may obtain an immigrant visa abroad or adjust her/his status in the U.S. to that of legal permanent resident (i.e., “Green Card” holder) in situations where the U.S. Citizenship and Immigration Services (U.S. CIS) backlogs or long processing times would otherwise demote that beneficiary to the first-preference category.

The Child Status Protection Act of August 6, 2002 provides an “age-out” protection for those “children” for whom immigrant visas are not available, because of backlogs or other U.S. CIS processing delays.  On February 9, 2007 the Board of Immigration Appeals (BIA) determined that the “age-out” protection extends to an individual whose immigrant visa petition was approved before the effective date of the Child Status Protection Act (August 6, 2002), but who filed an application for adjustment of status after that date.

Specifically, in an interim decision entitled In re Rodolfo AVILA-PEREZ (24 I&N Dec. 78 (BIA 2007)), the BIA held that Section 201(f)(1) of the INA applied to a child from Mexico whose U.S. Citizen mother filed an I-130, Immigrant Visa Petition for Alien Relative for his benefit on August 30, 1996 and then an I-485, Application to Adjust Status on October 15, 2003.  That is, the beneficiary who was 27 years old at the time that the I-485, Application to Adjust Status was filed still retains his status as a “child” for the purpose of obtaining the immigration benefit.  The court determined that because his I-130 visa petition was approved before the August 6, 2002 effective date of Child Status Protection Act (CSPA), even if the I-485 was filed after that date, he is protected from “aging-out”. In other words, the BIA found that there is no requirement that an application for adjustment (I-485) be filed or pending as of the date of enactment (August 6, 2002) to benefit from CSPA protection. As long as the “child” beneficiary’s I-130, Immigrant Visa Petition for Alien Relative is filed before she/he is 21 years old (in this case the individual was almost 20 years old), then the “child’s” age will be frozen as of the date that I-130 petition is filed  — and not as of the date the U.S. CIS reviews her/his application.