Immigration Corner | Will my daughter ‘age out’?

Dear Mrs Walker-Huntington,

My husband is a green card holder who has filed for my daughter and me. Will my daughter age out if the petition process is approved when she’s 21 years or over?

Also, I have a newborn baby and would like to know how to add her on the I-130 petition form.

Name withheld

Dear Name Withheld,

If a green card holder files a petition for a minor child to migrate to America, and that child turns 21 years old before the process is finished, that child will “age out”. This means the child will cease being a child for immigration purposes and be treated as an adult. However, if a US citizen files a petition for their minor child and the child turns 21 during the processing of the green card, that child retains child status for immigration purposes. The age of the minor child of a US citizen freezes at time of filing for immigration purposes.

In this case, if your husband is eligible to become a US citizen, he should do so as soon as that eligibility becomes available because the freezing of the age will occur even after filing – as long as the child is under 21 years old when the filing parent becomes a US citizen.

However, and this is a big however – if your husband filed one petition for you and added your daughter, if he becomes a US citizen during the pendency of the filing and upgrades the filing to reflect this your daughter will lose the ability to migrate on the one petition for alien relative. This ability to file one petition for a spouse and have your minor child ride on that petition is only available to a green card holder – it does not apply to US citizens. A US citizen must file separate petitions for a spouse and children.

This is also an important point for the newborn – if the father intends to remain in green card status during the pendency of this filing, the baby can be added with the National Visa Center. If your husband becomes a US citizen, he will have to make a separate filing for the newborn.

Lots of intricacies in your scenario and it would be wise for you and your husband to consult with a US immigration lawyer to go over the specifics of your case.

Dahlia A. Walker-Huntington, Esq. is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal and international law in Florida. She is a mediator and former special magistrate and hearing officer in Broward County, Florida. info@walkerhuntington.com