It depends on the status of the petitioner and whether he is a derivitive or primary beneficiary.
Immediate-relative children who were unmarried and under 21 at the time their U.S. citizen parent filed a Form I-130, Petition for Alien Relative, on their behalf are allowed to preserve their immediate relative status upon turning 21. Thus, they will never age out and are still eligible for the immigration benefit for which they applied. Under the prior law, they would have automatically moved into the first-preference category upon turning 21.
Children who were married and under 21 at the time their U.S. citizen parent filed an I-130 on their behalf and who subsequently divorced before turning 21 convert to the immediate-relative category. The CSPA preserves their immediate-relative status when they turn 21.
Children who were unmarried and under 21 at the time their legal permanent resident (LPRs) parent filed an I-130 on their behalf, and whose parent subsequently naturalized before the child turned 21, convert to the immediate-relative category. The CSPA preserves their immediate relative status when they turn 21.
From the USCIS Q&A:
"A “child” is defined as an individual who is unmarried and under the age of 21. Before CSPA took effect on August 6, 2002, a beneficiary who turned 21 at any time prior to receiving permanent residence could not be considered a child for immigration purposes. This situation is described as “aging out.” Congress recognized that many beneficiaries were aging out because of large backlogs and long processing times for visa petitions. CSPA is designed to protect a beneficiary’s immigration classification as a child when he or she ages out due to excessive processing times. CSPA can protect “child” status for family-based immigrants, employment-based immigrants, and some humanitarian program immigrants (refugees, asylees, VAWA)."
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I agree with Ms. Mulder. I wrote an article on this subject that may be helpful to you.
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