Immigration Corner | What will happen to my son?

Good morning Miss Walker Huntington:

I read your articles every week and find them very helpful.

I would like your advice regarding my filing status. My mom filed a petition for my brother and me from 2009. My brother's papers were processed in 2017 but because I am married, my process is not yet completed.

My concern is that I have an 18-year-old son and I would not want the ageing-out rule to affect him getting to go when the process is complete. How do you suggest that I proceed? Is there a form or some petition that can be done to avoid this issue if he should turn 21 and my papers are still not processed? Would getting an immigration lawyer assist the process any quicker?

I look forward to hearing from you. Thank you in advance.

J.G.

Dear J.G.

As the married daughter of an American citizen, you and your family are in the F3 preference category. In December 2018, visas are available in that category for persons who were filed for before August 1, 2006. This means that it is taking a little more than 12 years for a beneficiary such as yourself to obtain an interview for a green card.

Your husband and children under 21 years of age are automatically eligible for interviews as derivative beneficiaries of your petition. However, if any of your children are 21 years old when the visa application is being processed or by the interview, he/she may 'age out' of the process. The United States Congress passed the Child Status Protection Act (CSPA) to give protection to beneficiaries of visa applications who, while waiting for a visa, moved from child to adult status, i.e., 'aged out'.

The CSPA is a complicated piece of legislation that has generated numerous articles, books and seminars on how to interpret the law in a given situation, and the interpretation of parts of the law went all the way to the US Supreme Court for interpretation. In your case, a calculation would have to be performed to determine whether your son would still be eligible for the green card if he is not included in the visa processing. In some instances, even when the visa is paid for the derivative beneficiary, the US Embassy declares that the son/daughter is not eligible for the visa at the interview.

There is no appeal from the denial of the visa by the US Embassy. However, there are times when the US Embassy gets the calculation wrong, and if the formula is broken down showing their error, they usually concede. Every case is different and has to be calculated individually. An immigration lawyer can perform the calculation - when the visa becomes available, but cannot help you to accelerate the process. You the beneficiary can notify the National Visa Center when your son is about to turn 21 so they can expedite the paperwork on their end - but you will still have to wait on a visa to become available to determine if he would still be eligible for the green card.

- Dahlia A. Walker-Huntington, esq is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal and international law in Florida. She is a mediator and special magistrate in Broward County, Florida. info@walkerhuntington.com