INQUIRER Global Nation

CALIFORNIA, United States—The bewitching age of 21 is the time that cuts off immediate immigration benefits to a child. It is the point of separation between the migrating parent and the child left behind.

As the age of 21 is the cut-off date for children of US citizens and derivative children, there is a common misconception that this also applies to other categories of children such as stepchildren of US citizens.

The ages of a child that matter most for immigration petitions are the ages of 21, 18, and 16.

Stepchildren petitions

Generally, a child is defined under Immigration and Nationality Act as unmarried child less than 21 year of age. Hence, if the child marries before age 21, she or he no longer may be petitioned as an immediate relative.

The child will then be petitioned under the preference categories as adult children. To be placed in this category means that the adult child will have to face a long waiting period before a visa is made available, which can take up to 15 years.

Born in Manila, Joseph was 18 years old when his mother married her US citizen partner. The stepfather petitioned them both, but only his mother’s application was approved.

Grounds for denial

Joseph’s petition by his stepfather was denied on the ground that he was no longer eligible to be classified as a stepchild. Whether or not born out of wedlock, a stepchild is a “child” under the age of 18 when the marriage creating the step relationship occurred.

Since Joseph was 18 years old at the time the mother married his stepfather, he was no longer considered a stepchild. Had the mother known the point of establishing the stepfather-child relationship, she would have married her US citizen partner earlier since they have been living together for a while before they got married.

Children born out of wedlock may be “legitimated” by an act putting them in the same position as a legitimate child. Marriage of the natural parents is the usual manner of legitimation if the marriage is legal where performed. The act of legitimation either by acknowledging the biological child or through marriage must take place before the child turns 18.

Adopted children

It is also a requirement that the illegitimate child be in the legal custody of the legitimating parent at the time of the legitimization. If the acknowledgment of the child was done when the child was already 20, the US citizen petitioner would not be able to petition the child. To prevent the child from losing his immigration benefits through petition by the US citizen petitioner, it is important to be aware of the appropriate time to legitimate the child.

Most of the time, adoption takes place soon after the child is born. But for most adoptions, some petitioners wait until the children are in their teenage years before actually initiating the adoption process.

What to do

Under US law, the child must be adopted while under the age of 16 and the child must have been in the legal custody of, and resided with, either or both of the adopting parents for at least two years.

Future adoptive parents do not have to wait until the children turns 16 before filing petitions for adoption. These petitions must be filed and the judicial decree of adoption must be issued before the child turns 16.

Sometimes adoption decrees are issued after the age of 16 and although they are completed judicial adoptions, the most important requirement for petitioning may no longer be met. The US citizen adoptive parent may no longer petition his adopted child.

Stop the clock from ticking

There is only one exception to the age 16 cutoff. If the child is a natural sibling of another child who has been adopted under the age of 16, the older sibling may immigrate through adoption by the same parents before the age of 18.

In the past, it was a nightmare for lawyers to handle a case where a child turning 21 years is still in the process of consular processing for immigrant visa. Many children age out before the time arrives for their interview because of delay in processing at the immigration service or consular office. This results in inequitable loss of opportunity for the child.

As Congress realized this unfairness in the system, the Child Status Protection Act, or CSPA, was enacted into law where the age of the child freezes at some point for purposes of eligibility for visas.

For preference petitions and their derivative beneficiaries, a mathematical calculation of the date of filing and approval of the petition is taken to determine whether the child remains less than 21 years old for purposes of the petition.

Irreversible errors

Parents planning to petition their children must plan ahead, taking into account the accurate and relevant ages for petitioning.

Act timely and avoid denials. More often than not missed opportunities for children are irreversible.