The Age-Out Clock

The statute determines the age using the child's age on the date an immigrant visa number becomes available, REDUCED BY the number of days in the period during which the applicable petition was pending. A petition that sat pending for three years therefore takes three years off the age the law reads — which is why a child who is twenty-three on paper can still be a 'child' for this purpose, and why the pending time is worth knowing to the day.

The reduced age applies only if the person has SOUGHT TO ACQUIRE lawful permanent resident status within one year of that availability. This is the condition families lose the benefit on, and it is a deadline rather than a formality: the arithmetic that protects the child is conditional on acting inside that year. What specific act counts as having sought to acquire is not decided on this page — it has been litigated, agency guidance has changed, and it is the first thing to put to an immigration attorney.

The rule applies to petitions classifying a child under the family second preference, and to petitions under the family, employment and diversity provisions where the person is a DERIVATIVE beneficiary — the child listed on a parent's petition rather than the person the petition is about. That second limb is the one that matters to most families here: the employment-based petition is the parent's, and the child rides on it.

Where the calculated age is twenty-one or more, the statute provides that the petition shall AUTOMATICALLY be converted to the appropriate category and the person shall RETAIN the original priority date issued on receipt of the original petition. Ageing out is therefore not the end of the queue it is usually described as — the place in line is preserved, in a category that is typically slower. It is a demotion, not an eviction, and the distinction is worth knowing before anybody makes an irreversible decision about it.