Another aspect of turning 21 for an alien is that she is no longer a child for immigration purposes, and that means the end of certain possibilities for herself. For example, a “child” of a U.S. citizen parent is an immediate relative of that parent. When that parent’s petition for that child is approved, there is no waiting period for a visa to become available. She can apply for her green card immediately. In contrast, the adult child of a U.S. citizen is no longer considered an “immediate relative” for immigration purposes and has to enter a waiting list, often for years, for a visa to become available after a petition is approved.
What if an alien is 20 years old when her U.S. Citizen parent’s petition for her is filed, but she turns 21 before she applies for a green card? The Child Status Protection Act protects aliens in a variety of situations from the ill effects of turning 21. In the case of a U.S. citizen’s child, her age is frozen at the moment the petition is filed, which means she longer has to worry about turning 21 and losing the opportunity to apply for her green card.
For children of Lawful Permanent Residents, the protection is not as strong. The CSPA merely allows her to deduct from her age the number of days that the petition was pending. If she is under 21 by that calculation, her age will freeze there, but only if she seeks to acquire permanent resident status within one year of the visa becoming available. If this deduction is not enough to reduce her age under 21 when the visa becomes available, her age will not freeze and she will be treated as an adult. As the adult, unmarried son or daughter of a Lawful Permanent Resident, she will move to an even longer waiting list. The only benefit will be that she gets to keep the same priority date, meaning that she does not move to the back of this new line. Even that benefit does not apply to all aliens, thanks to complications in the law that have been the subject of many court battles over the past years. The bottom line is that the protection is much more likely to help for children of U.S. citizens.
Today, let’s consider Estella, a 20-year-old undocumented woman from Chile. She is already the beneficiary of a petition filed by her father, but her father is only a Lawful Permanent Resident, not a U.S. citizen. The petition took three months to be approved, and she is now at the beginning of a waiting list of approximately four years. All CSPA will do is let her deduct three months from her age. When she turns 21 and three months, she will no longer be a “child,” and will have to move to the longer waiting list which could add more than ten years to her wait. There is no way her visa will be available before she ages out.
But there is a way out of this mess. CSPA will save Estella if her father becomes a citizen before she turns 21. If he can finish all his processing and take the Oath of Citizenship even one day before Estella’s 21st birthday, the Child Status Protection Act will freeze her age at 20 as the daughter of a U.S. citizen. Then she can apply for her green card right away But if his citizenship comes after she ages out, it will have no effect on her situation.
Unfortunately, Estella’s father has not been active in procuring his citizenship. He is afraid that a criminal conviction in his past might result in his deportation. Although an attorney could help him assess the risk, he has procrastinated because he thinks it’s too expensive. But which is more expensive? The $680 to apply for naturalization plus a few thousand dollars to an attorney, or from several years to a lifetime of missed opportunities for Estella as she waits and waits for another chance at her green card? While she waits, she cannot work legally or travel abroad, and a problem that her green card could have protected her from could arise and cost far more to defend and deal with. Indeed, for aliens under 21 an important clock is counting down, and those are informed have the best advantage.
An attorney cannot push services on an unwilling client, which means that family members must be diligent in encouraging each other to take action on their rights.