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How Do I Prevent My Child From Losing Benefits at Age 21 ("Aging Out")?

What is an "Aging Out" case?
Under certain circumstances an application or petition must be acted upon and an immigration status granted before the applicant reaches a cutoff age. When a child is applying as the dependent of a parent, the child must remain a "child" under immigration law (see INA 101(b)(1)) up to and including the date that the final benefit is granted. The most common situation is where an applicant for adjustment of status (principal) is a preference category immigrant, and the spouse and child(ren) of the applicant (derivatives) are qualified for adjustment only if the principal applicant qualifies. Any child in this situation must remain unmarried and be under 21 years of age at the time the adjustment of status to lawful permanent resident is finalized. If the child becomes 21 years of age before the adjustment of status is completed, the child "ages out" and cannot become a permanent resident along with the principal applicant.

Another common situation is when a U.S. citizen petitions for a child. The unmarried child under age 21 is an "immediate relative" under the immigration law. Once reaching 21, however, the "child" becomes a family-based first preference "son or daughter." That category can have a waiting list for a visa number.

What is the INS Policy on "Age Out" Cases?
The INS will try to complete any "age out" case that it is aware of prior to the child losing the benefit because of reaching its 21st birthday.

What Should I Do If My Child Might "Age Out"?
When filing an application for benefits, particularly for adjustment of status to lawful permanent resident, you should mark the child's application in red ink, "Age Out Case." You should also include a cover letter with the filing that clearly states that a child may "age out" if not processed timely.

When a case has already been filed, you should send a letter to the office processing the case that clearly states that a child may "age out" if not processed timely. The letter should include the names, dates of birth, file numbers, filing receipt numbers, and type of case filed for each applicant involved. The envelope should be marked, "age out case" on both sides, in red ink.

Even given our best efforts, a minimum amount of time is needed to process a case on an expedited basis. This minimum is generally 4 to 6 months. In order to help assure that an "age out" case is processed in time, at least 4 to 6 months advance notification is needed.

How Can I Check the Status of My Application?
Please contact the INS office that received your application. You should be prepared to provide the INS staff with specific information about your application. Please click here for complete instructions on checking the status of your visa petition. Click here for information on specific INS offices.

Can I Appeal?

No. The law defining the term "child" cannot be waived or applied in a discretionary manner. Unfortunately, if the child "ages out" before the benefit can be granted, the benefit is lost. The INS will do everything possible to prevent this from happening but may not be able to timely process the case due to an inadequate amount of notification or normal timeframes needed to process cases.

What Can I Do If My Child's Case "Ages Out?"
If you are a lawful permanent resident or applicant for that status, and your child turns 21 before the case can be finalized, you must file an I-130 Relative Petition for your son or daughter as soon as possible after you obtain permanent residence status. This will establish a priority date for immigrant visa issuance for your son or daughter as a second preference immigrant. There is a waiting list for visa numbers under the family-based second preference. Filing as soon as possible will help assure the minimum wait for a visa number to become available.

If you are a U.S. citizen petitioner for your child, once your child turns 21 years of age you do not need to file any new documentation to have your child changed to the first preference category. It happens automatically on the child's 21st birthday if the petition is still waiting use for permanent residence.

If you need further information, please call the National Customer Service Center at 800-375-5283.

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