Asian Journal- The Filipino-American Community Newspaper

LATA Shah filed an immigrant petition under the 4th preference family-based category in behalf of her sister, Vibha Shah, on June 10, 1991. Said petition was approved on June 28, 1991.

Vibha and her family applied for immigrant visas with the United States Consulate in Mumbai, India in June 2003 and were later granted visas, with the exception of her son, Nihar (born November 10, 1982), who was then more than 21 years old. After waiting for years for the visas to become available, they were told that Nihar would not be able to accompany them to the United States as one of Vibha’s dependents because he had already "aged out." Vibha, her husband, Umesh, and their son, Sanket, left Mumbai for the United States with heavy hearts because they knew that their family would never be the same without Nihar.

Years have passed but the Shah family never gave up on their quest to bring Nihar to the United States . They continued to hope and pray that one day, a miracle would happen and they would be provided a genuine solution to their problem. In February 2008, the Shah family read the article I wrote in the newspaper about the case of the 23-year old girl who was able to get a greencard in the United States as the "minor" child of a lawful permanent resident despite her actual age and immigration status because of the provisions of the Child Status Protection Act (CSPA) and Section 245(i) of the Immigration and Nationality Act.

They wondered if the CSPA can also apply to the case of their 25-year old son so they immediately scheduled an appointment for an office consultation with me. After carefully evaluating his case, I concluded that the US Consulate committed a grave error when it denied the immigrant visa application of Nihar in 2003. Under the CSPA, he could still be considered as a "minor" child and dependent of Vibha.

Generally, a child who turned 21 years old could no longer be considered a dependent of the principal beneficiary in an employment-based or family-based case. As an exception, however, a child could request for recalculation of his age pur-suant to the CSPA.

The CSPA preserves or locks in the age of the child at the time a visa number became available for the child, or in the case of derivatives, when a visa number became available for the child’s parent, minus the period during which the immi-grant petition was pending. For said formula to apply, however, the child must have sought to acquire lawful permanent resi-dent status within one year of the visa availability date.