In most occasions, US immigrant petitions suffer long processing delays and backlogs. In effect, children beneficiaries already aged out. Consequently, they lose eligibility for immigration benefits because they hit the age of twenty-one (21) before they obtain the status of permanent resident. They fall into a different category, from non-preference to preference category.
With the advent of Child Status Protection Act in 2002, the effect of aging out was forestalled. CSPA protects the opportunity of a child to become a green card holder despite his/her ineligibility as to age requirement.
Based on the aging out provision of CSPA, the following guidelines are provided:
If the Petition for Alien Relative for non-preference category (Form I-130) was filed by a US citizen for his/her child, the beneficiary’s age is frozen on the date of filing provided that there is a permanent residency number immediately available to the principal alien.
Example. Joe, a US citizen files a visa petition for his alien spouse, Mary, including her 17 year old daughter Marijoe. The petition was approved after five years which during the time there is also a visa number available. Since Marijoe is 22 years old already, she will qualify under the preference category. But, because of CSPA, her age freezes to 17, the time of filing of the petition. Therefore, she will still be eligible for permanent residency as immediate relative provided that she files the petition for permanent residency within one (1) year from the time of visa becoming available.
In case there is no permanent residency number (preference categories), the time during which the petition is pending will be subtracted from the current age of the child at the time of visa availability to know if the child is still eligible for permanent residency.
Following the example above, the petition was approved after a year when she is 18 years old but the visa number becomes available after 5 years when she is already 22 years old. In this case, Marijoe can only subtract one year (time during which the petition is pending) from his current age. Since the age of Marijoe is set to 21, she will no longer apply for permanent residency under the category of immediate relative but under the preference category which requires longer waiting period.
Opt out means that if the permanent resident petitions for an alien son/daughter and during the processing, the petitioner becomes naturalized, the beneficiary can choose to remain in the second preference category instead of automatically converting to a 1st preference classification. If the beneficiary wants to opt-out, he/she must request in writing to the USCIS.