I’m over 21. Can I still Adjust Status?

Question: My parents applied for me some time ago. Unfortunately, I’m over 21 years old. Can I still adjust status for residency or have I aged out?

Answer: The Child Citizenship Protection Act (CSPA) deals with whether or not you will be able to adjust. Since no regulations have yet been issued, the implementation of the CSPA has been through various interpretations of case law and USCIS memos. Sometimes the CSPA will not protect someone who is over 21 years old, but will still allow for certain other benefits. For example, if for whatever reason you are not considered to be less than 21 years old under the CSPA, it will allow you to retain the same priority date as the original petition once your category is converted. This could save years of waiting for the visa number to become current.

Question: I’m not sure I understand. Can you give an example?

Answer: Take for example a girl named Lisa. Her aunt filed for her mother 19 years ago and when the visa number became available, her mother was able to adjust status. Lisa filed an adjustment application prior to 21 years old, but unfortunately, it was not adjudicated for whatever reason until she was 23 years old. Therefore, she had aged out and was not longer considered 21 years old under the CSPA. The question then becomes when she can file another adjustment application in order to obtain residency. Normally, she would now be considered a single daughter of a Lawful Permanent Resident which has a typical waiting period of many years for the visa number to become current.

However, and this is the key, the original priority date of her aunt’s petition to her mother over 18 years earlier can be used as the priority date of this now converted petition. Thus, the priority date is current and Lisa can adjust status to that of a Lawful Permanent Resident even though she is over 21 years old and not considered a child under the CSPA.

Question: I also have a friend who is from the Philippines. His father originally filed a petition for him under preference 2A because he was under 21 at the time and his father was a Lawful Permanent Resident. Afterwards, he aged out and I believe the preference category changed to 2B as he was now a son over 21 of a Lawful Permanent Resident. His father then became a U.S. Citizen and I believe the preference of the petition changed to the first preference because he was now the son of a U.S. Citizen. The question is whether he can use the CSPA to opt out of the first preference and stay in Preference 2B (son of an LPR), even though the petition was originally filed under preference 2A (child of an LPR)?

Answer: Previously, the answer was no. It previously had to be filed under preference 2B in order to elect to opt out of the first preference. However, that policy has now changed and a person can still elect out of the first preference even though they had a petition originally filed under preference 2A, not preference 2B.

As you can see, the CSPA is quite complicated. However, if there is a chance you would fall under the provisions of the CSPA, you should definitely take advantage of it.

Many years ago, Brian D. Lerner has passed a rigorous examination and extensive experience requirements by the State Bar of California, Board of Legal Specialization. He can handle the most difficult of immigration cases arising from business visas, work permits, Green Cards, non-immigrant visas, deportation, citizenship, appeals and all other areas of immigration. He received his B.S. Degree in Business Administration, with an emphasis on Computer Information Systems, from the University of Southern California. He graduated from the University of the Pacific, McGeorge School of Law with a Juris Doctorate degree. Mr. Lerner is admitted to the United States Supreme Court, the California Supreme Court and the U.S. Courts of Appeals for the 11th, 10th, 9th, 8th, 6th, 5th, 4th, 3rd, 2nd and 1st Circuits. This means that he can prepare and file all Circuit Court of Appeals and U.S. Supreme Court cases. As for all immigration matters at the Immigration Courts, USCIS, BICE, BCBP, BALCA, Department of Labor, and the Board of Immigration Appeals, our firm can prepare all matters in every state in the United States, Puerto Rico and Guam. Mr. Lerner has traveled all over the United States to help people with their immigration needs. Mr. Lerner can handle the toughest of deportation cases as well as any appeal, Petition for Review or Motion to Reopen case. Mr. Lerner is frequently present in immigration court, representing individuals in deportation, removal, waiver asylum, withholding of removal and adjustment of status hearings. He has prepared numerous appellate briefs to the Board of Immigration Appeals and other appellate boards at the Bureau of Citizenship and Immigration Services. He has appealed and argued cases in the Circuit Court of Appeals all over the United States. Mr. Lerner has prepared business visas for individuals from all over the world. Our firm has clients from practically every continent on Earth. His visa experience extends to Treaty Traders, Treaty Investors, Intercompany Transferees, Speciality Occupations, Training programs, and NAFTA visas. He has extensive experience in most all other types of visas issued. In addition to his visa experience, Mr. Lerner has prepared Multinational Manager, National Interest Waiver and Extraordinary Alien petitions for highly qualified foreigners. Mr. Lerner’s clients are from all over the United States and many countries around the world. Immigration Law is Federal Law. Therefore, a petition or application would be prepared the same in Texas, Florida, or any other State as it would in California. It is more important for you to make sure that you have an expert attorney in Immigration Law prepare your case, rather than a lawyer who happens to be local. There is too much at stake to just give your case to anyone. Mr. Lerner will fight for you and your family. Since he is married to an immigrant himself, he is committed to helping people from all around the world to come to the United States to realize their dream.

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