How come the consul said my child ‘aged out?’

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DEAR Atty. Gurfinkel:

My sister petitioned me back in 1997, when my child was still a baby.  Recently, the priority date became current. We paid all the fees and submitted all the forms on behalf of my family, including my child, who is now over 21.

At the interview, the consul approved my husband’s and my visas but said my child cannot be included because he “aged out.”  If he was only a baby when the petition was filed, how could he have aged out?  Is there hope under the Child Status Protection Act (CSPA)?

Very truly yours,

CD

Dear CD:

Except for petitions by U.S. citizens of their minor children (called “immediate relatives”), a child’s age and eligibility for benefits under CSPA are calculated and determined based on the date the priority date finally becomes current, and not their age on the date the petition was filed.  This includes all other family-based petitions and employment-based petitions.

The Child Status Protection Act (CSPA) can sometimes provide relief for children who aged out.  But it is very complex and can be confusing in terms of determining eligibility. 

For immediate relatives, eligibility is determined as of the date the petition was filed. If the petition was filed before the child’s 21st birthday, the child could benefit from the CSPA, provided they don’t get married.

For other petitions, the child’s CSPA eligibility is determined based on when the priority date becomes current (or visa becomes available), even if they were under 21 when the petition was filed.

In your case, your sister petitioned you.  It was not a case of a U.S. citizen parent petitioning his or her child as an immediate relative.  Therefore, the child’s age on the date the petition was filed is not determinative for CSPA eligibility.  Instead, how old was the child when the priority date finally became current, and then you must perform a mathematical computation, to determine if their CSPA age is still under 21.

If a person has questions or issues about their child’s CSPA eligibility, or if they have been turned down by the Embassy because the child aged out, they may want to consult with an attorney, who can evaluate their case and determine if the child is truly CSPA eligible.  In that case, the attorney could either assist in processing the child’s case or seek reconsideration from the Embassy of the visa refusal.

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Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.

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Atty. Michael Gurfinkel
Atty. Michael Gurfinkel

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