Age of Child

[andisash]

Hi Seniors

I have a couple of questions that have started haunting me

1. Our son turned 18 this year while our employment based GC process still has long way to go (EB3 05'). Till what age is he eligible as a 485 dependant in our employment GC process?

2. If the age is 21 yrs, will we have to file seperately once he turns 21 though he was a minor when we filed his 485?

3. If by any chance we have some issues in our 485 adjudication, what will be the best way for him to maintain his legal status?

Look forward to responses from all seniors

Andisash

[Attorney_11]

It is possible that the Child Status Protection Act may permit a child to continue forward as a derivative on an employment based adjustment application filed while they were a minor even after they turn 21 provided they do not get married prior to the approval of the green card. It would be advisable to seek the counsel of a qualified immigration attorney to discuss personalized legal advice and legal strategy.

[catx]

You are referring to "aging out". The rules under the Child Status Protection Act (CSPA) are complex, but the basic facets that would likely apply are (a) the time when your I-140 petition was in processing by the USCIS is added to your son's 'age' (so for example if it took 6 months for processing between when your I-140 petition was filed and approved, then those 6 months would be added and your son would age out at 21-1/2), and (b) if your priority date becomes current before he ages out and he is able to file a (derivative) I-485 adjustment of status based on your approved I-140 petition, then his age is frozen (he would not age out unless your or his I-485 adjustment of status was denied for some reason). As for what happens if your son ages out -- unfortunately he losses his status (he is probably currently on a H-4 visa), and must apply for his own status and pursue his own permanent residency (if he so chooses). In many ways if your son ages out, then he has to go to the back of the immigration line (which I consider unfair and an injustice).

Because of the complexities of the CSPA and the issues around aging out, it is recommended that your consult with a qualified, experienced immigration attorney, and plan ahead for whatever actions need to be taken.

Note: This is a personal issue for me while I wait for my priority date to become current. Both my kids have been in the U.S as legal aliens for the majority of their schooling (grade school > high school > university). First my son has turned 21 and has now aged out. We changed him from a H-4 visa to a F-1 visa so he could finish his degree (in fisheries biology). He is now planning on going onto graduate school (in environment science) in part with the hope that there will be a STEM visa for permanent residency by the time he completes his Masters. Second my daughter is 19 and if there is no immigration reform will also age out, so very recently we went ahead and changed her from a H-4 visa to a F-1 visa as well.

[walked]

Well I beg to disagree as my daughter was a beneficiary under ny employment visa before her 16th birthday. I received my green cards and my children should have followed to join me. After a 5 year wait , when the priority date was current my boys got their greencards but she " aged out" based on the consular. Luckily I had also filed an I- 130 for all of them and so she benefitted from that even though she was already over 21. All the attorneys told me otherwise . If you have your greencard Please put in an I-130 for your son

[cybergeek11]

If the I-485 has been filed as your dependent and you have the EAD for him, then it will not be an issue. I am sure he has his social security # and driving license.

[catx]

If you have your greencard please put in an I-130 for your son.

That is the key point. If you have permanent residency (green card), then you can, and should, file a I-130 petition for your son, which would be under the F2B category, unmarried sons and daughters (21 years of age or older) of permanent residents. However, there is currently an 8 year backlog in this category. Of course, if your priority date becomes current and you can file an I-485 adjustment of status before your dependent child ages out, then they are okay.

[t75]

Of course your child can also pursue employment after college which might sponsor H1B and for GC.

[andisash]

Thank you all for your advice.

Currently, my son has a valid EAD & Driver's License based on his 485 which has been pending since Aug 2007.

Do I need to do anything right now to be on a safer side?