Asian Journal- The Filipino-American Community Newspaper

Mr. A’s mother, a United States citizen, filed an immigrant petition in his behalf under the First Preference Family-Based Category on December 17, 1990, which was later approved.

On the basis of said approval, Mr. A and his children applied for immigrant visas with the US Embassy in Manila in May 2005.

At the time of the interview on May 18, 2005, however, Mr. A’s son, Junior, was found ineligible for an immigrant visa for the reason that he "is over-age and no longer eligible."

Mr. A came to our office last July 2008 after hearing about our CSPA victories from his fellow Filipinos. After studying his case, we informed him that the US Embassy committed a grave error when they denied the immigrant visa application of his son.

After Mr. A retained our services, we immediately filed a memorandum with the US Embassy explaining why Junior (now 24 years) should still be allowed to obtain an immigrant visa as a dependent of his father, Mr. A.

In our memorandum, we explained that the US Embassy failed to consider in its decision that under the Child Status Protection Act (CSPA), the age of the dependent child is determined by subtracting the number of days the petition was pending from the age of the dependent on the date that a visa number became available (or the petition approval date, if a visa number was already available on said approval date). Further, under the Patriot Act, a child is given an additional 45 days after his 21st birthday, during which period he/she is to be considered still a child, provided that his/her 21st birthday occurs after September 2001, and the immigrant petition upon which he/she claims to be a child was filed on or before September 11, 2001.

The immigrant petition under which Junior claims to be a dependent child was filed on December 17, 1990. Visas became available for said petition on May 1, 2005. Junior, who was born March 23, 1984, turned 21 after September 2001, or on March 23, 2005. According to the Patriot Act, David Jr. would be considered a child for 45 days after his 21st birthday. He would, thus, be considered 21 years of age on May 7, 2005. The relevant dates to consider can be summarized as follows:

Date petition was filed: December 17, 1990

Date visa became available: May 1, 2005

Date of birth of David Jr.: March 23, 1984

21st Birthday of David Jr.: March 23, 2005

45 Days after 21st birthday: May 7, 2005 [Date on which Junior is considered to be 21 years old under the Patriot Act]

Age of Junior at time of visa availability: Less than 21 years old