Ciudadanos y Inmigración

The Immigration and Nationality Act (INA) has a specific definition of “child” for family-based immigration purposes. To be considered a child, a person must be under 21 years old and unmarried. If a person meets the definition of child, their US citizen or LPR parent can sponsor them for a green card.

If someone is under 21 years but legally married, they cannot be considered a child for immigration purposes. Legally adopted children can also meet this definition if they were adopted before they turned 16 years old. They must also have been in the legal and physical custody of the adopting parent or parents for at least two years before applying.

Step-children are considered the same as biological children, as long as their step-parent and biological parent married before the child was 16 years old.

In Illinois, children born when their biological parents were not married (also known as born “out of wedlock”) have the same rights as children born to married parents. Therefore, children born out of wedlock in Illinois can still be considered a child of a petitioning parent.

Note: For people living outside of Illinois, the rules for children out of wedlock may be different. Consult a local immigration attorney or Department of Justice (DOJ) accredited representative to learn more.

A US citizen parent can petition for unmarried children under 21 as “immediate relatives.” They may file their petition and request for a green card at the same time for their immediate relative child.

LPRs can also sponsor their unmarried children under 21 years old. These children are called “preference category” immigrants. Preference category immigrants may not be eligible for a green card right away.

If a child gets married, even if they are still under 21 years old, they can no longer be considered a child. They would be treated like a married adult son or daughter. US citizens can still sponsor married adult sons and daughters. However, this means they will likely wait much longer for a green card.

LPRs cannot sponsor married adult sons and daughters. So, if the child of an LPR gets married, they are no longer eligible for a green card from their LPR parent. The petition becomes invalid.

Generally, if a beneficiary turns 21 years old before the green card process is complete, then they “age out” of their immigration category. This means they are no longer considered a child, and their immigration category would change to an adult family member.

The Child Status Protection Act can keep a beneficiary’s age for immigration purposes to under 21 years old. The CPSA provides a formula for calculating a person’s adjusted age, or “CSPA age.” If their CSPA age is under 21 years old, then they may still stay in their child immigration category.

When a US citizen files a petition for their child, the child’s age is generally frozen on the filing date. This means that they will be considered a child and can immigrate as an immediate relative forever. They must still remain unmarried throughout the process. For example, if the child of a US citizen is 20 years, 11 months, and 29 days old on the day the parent filed the petition, then they can be considered a child until the process is complete, however long that takes.

The CSPA rules are more complicated for the children of LPRs. There are two steps required for a child who becomes 21 years old to stay eligible for a green card.

First, the CSPA age must be under 21 years old. The CPSA age of a child beneficiary of an LPR is calculated using a formula: 

Age of the beneficiary when an immigrant visa becomes available minus time the petition was pending equals the child's CSPA age.

If the CSPA age is under 21 years old, then the person can still immigrate as the child of an LPR. The formula looks at exact dates, so it’s important to know:

• The exact age, to the day, of the child on the date the visa becomes available, and
• The exact length of time, to the day, the I-130 petition was pending.

For example, an LPR files a petition when their child is 19 years and 6 months old. USCIS approves it 10 months later. A visa becomes available when the child is 21 years and 4 months old. Subtracting the 10-month petition period gives a CSPA age of 20 years and 6 months.

It’s possible that the CSPA calculation will not preserve the person’s age to under 21. For example, if the child is 25 years old when a visa becomes available, and the I-130 petition was pending for 1 year, their CSPA age would be 24 years. This person would no longer be eligible to get a green card as a “child” of an LPR. Their category will change to unmarried adult son or daughter.

Second, if the beneficiary’s CSPA age is still under 21, they must “seek to acquire” a green card within one year of the visa becoming available. This means they must file an adjustment of status application or start consular processing within that year.

Here is an example of a child of an LPR turning 21 while waiting for a visa to become available:

• An LPR files a petition for their child on January 1, 2025.
• The child’s birthday is January 1, 2005.
• The petition was approved on January 1, 2026. The petition was pending for one year.
• A visa becomes available to the beneficiary on July 15, 2026. The child was exactly 21 years, six months, and 15 days old when a visa became available.

Their exact age on the date the visa became available was 21 years, six months, and 15 days old. Subtract the one year the petition was pending from this, and the beneficiary’s CSPA age is 20 years, six months, and 15 days old. The beneficiary must “seek to acquire” a green card within one year of July 15, 2026. They must either file for adjustment of status or start consular processing by July 14, 2027 to continue to be eligible for a green card.

Remember: The formula looks at exact dates to calculate age. It’s important to count each individual day to ensure an accurate CPSA age and timely seeking to acquire.

If the CPSA cannot preserve a child’s age for immigration, then once the child turns 21, their immigration category changes. The child of a US citizen would no longer be an immediate relative. They become an unmarried adult son or daughter of a US citizen. If they get married, then they become a married adult son or daughter of a US citizen. The child of an LPR would change category to unmarried adult son or daughter of an LPR. In all cases, the immigration process for the aged out children will take longer than if their age is not preserved under 21 years old.

If the adult son or daughter of an LPR gets married, they are no longer eligible for a green card. There is no category for a married adult son or daughter of an LPR.