How would you feel if after waiting for years, sometimes even decades, for the visas to become available in your case, you were told that your child would not be able to accompany you or follow and join you in the United States as your dependent because your child had already "aged-out?"
Fortunately, there is a possible solution to your problem—the Child Status Protection Act (CSPA). Our recent CSPA victories illustrate how the provisions of said law could be utilized to provide a solution to the aging-out problem.
Recently filed case may retain earlier priority date
The law states that if a derivative child is determined to be 21 years old or older under the CSPA when the visa number of the parent becomes available, the petition shall be converted to the appropriate category and the child shall be allowed to retain the original priority date issued upon receipt of the original petition.
Last February 2008, the US Citizenship and Immigration Services (USCIS) approved our request that the 29-year old daughter of our client be allowed to retain the August 3, 1989 original priority date of the case filed by her grandmother in behalf of her mother pursuant to the CSPA.
The daughter was still a minor at the time of the filing of the case but had already aged-out at the time the priority date became current on March 1, 2003. Her mother petitioned her upon arrival in the United States in 2003 but there is a 10-year backlog in her family-based category. As a result, however, of the approval our request, her priority date has become current and she is now in the process of obtaining her immigrant visa from abroad. She will soon be reunited with her family after being separated from them for more than 5 years.
21 years old or older but may still be considered a minor
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 immigrant petition was pending. For said formula to apply, however, the child must have sought to acquire lawful permanent resident status within one year of the visa availability date.
On April 11, 2008, the US Embassy in Manila, after agreeing to re-compute his age pursuant to the CSPA, allowed the 22-year old son of our client, a registered nurse who was able to obtain his greencard through employment in 2006, to follow and join his father in the United States as his dependent or "minor" child. He arrived as a lawful permanent resident and reunited with his family on May 11, 2008.
On June 2, 2008, we had another CSPA victory. The US Embassy in Manila approved our request that the age of the 22-year old son of another nurse, be recalculated pursuant to the CSPA. Despite his age, the son was considered as dependent or "minor" child and was allowed to follow and join his mother in the United States. He arrived as a lawful permanent resident and reunited with his family on June 18, 2008.
On June 18, 2008, the US Consulate in Mumbai, India, approved our request for recalculation of age and allowed the 25-year old son of our client to follow and join her in the United States as her dependent or "minor" child. The client here was petitioned by her sister.
Finally, on October 22, 2008, the US Consulate in Mumbai, India, approved another request for recalculation of age and allowed the 26-year old son of our client to follow and join her in the United States as her dependent or "minor" child. The client here was petitioned by her mother.
If you have any questions regarding this topic, please feel free to call us at (818) 956-8844 [Glendale] or at (626) 331-8188 [Covina] to schedule an appointment for your free initial consultation. You may also visit us www.palacioslawfirm.com.
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Attorney Eugene M. Palacios is the founder and principal of the Law Offices of Eugene M. Palacios, APLC. He has great depth of experience and a successful track record in handling employment and family-based petitions as well as PERM and naturalization applications. He is licensed as an attorney in California and is admitted to practice before US Immigration Courts, the US Central District Court, and California State Courts. He is also an active member of the American Immigration Lawyers’ Association. His offices are located at 100 North Brand Boulevard, Suite 600, Glendale, California 91203 and at 800 South Barranca Avenue, Suite 250, Covina, California 91723.
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The above article does not, and is not intended to, constitute legal advice for a specific immigration problem and does not create an attorney-client relationship between our office and the reader. It is for informational purposes only and reflects our law firm’s opinions and views on general issues.
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