Question: I am a permanent resident. My son lives outside the U.S. He turns 21 next month. He has a tourist visa and can travel to the U.S. If I apply for an immigrant visa for him now, will he be categorized as a child under 21? Or will he be categorized as a child over 21?

Answer: In your situation, if you file Form I-130 for your child before his 21st birthday, his age will be “frozen.” Even if he turns 21 during the application process, his case will still be categorized as a child under 21. You still have to wait for USCIS to process his application, but he will not have to endure a long visa backlog. 

If I file Form I-130 before my child turns 21, will my child “age out”?

U.S. immigration law groups family members into different categories. Immigration law also limits the number of immigrant visas and green cards that are available each year to these different categories. If the number of applicants from one category exceeds the number of green cards available for that category in a year, then many applicants will have to wait until an immigrant visa or green card becomes available before they can immigrate to the U.S. 

A U.S. citizen’s unmarried child under the age of 21 is an “immediate relative.” There is no limit on the number of immigrant visas or green cards that can be issued to immediate relatives. 

A U.S. permanent resident’s unmarried child under the age of 21 is in the F2A category. There is a limit on the number of immigrant visas and green cards that can be issued to this category. Fortunately, the number of green cards available for this category currently exceeds the number of applicants. Therefore, there is currently no backlog for this category. 

However, for children over the age of 21, the number of applicants greatly exceeds the number of immigrant visas and green cards available. As a result, children over the age of 21 must wait many years before they can obtain a green card.

The family immigration process can be very slow. On August 6, 2002, Congress enacted the Child Status Protection Act (CSPA) to ensure that children under 21 will not be subject to a long backlog simply because they turned 21 during the application process.

Therefore, in the example above, if you are a U.S. citizen or green card holder and file Form I-130 for your child before he turns 21, the CSPA will freeze his age, and he will continue to be categorized as a child under 21 throughout the application process. As a result, he will not have to endure the lengthy backlog applicable to children over 21.

If your child will turn 21 soon, it is extremely important to start his or her immigration application as soon as possible.