Immigration Corner | Should I pay for my son’s visa?

Dear Mrs Walker-Huntington,

I recently received confirmation from the National Visa Centre (NVC) that my I-130 application filed by my husband from March 2020 was approved. My husband is a green card holder in the state of Florida.

However, I went onsite to pay the affidavit of support fees and the IV application fees for myself and saw my son’s name along with similar fees to be paid for him. My son is now 23. However, when the petition was filed he was 20 years old. I had just noted his name on the form, because they asked for all children to be noted.

I am now querying whether I should pay his IV application fee of $325 as well as mine and see what happens after, or not pay the fee and query this when I go for my interview.

What do you think? I am confused and not sure what to do, as I really want him to come with me. I had planned on starting his filing right after as well. What should I do?

Awaiting your reply.

SE

Dear SE,

When the spouse of a green card holder files for their wife or husband, and there is a minor child of the marriage, or to whom immigration benefits can be conferred, the petitioner files one petition for alien relative, the I-130. After the I-130 is approved, and if the minor child is eligible for visa processing the file is split, with the foreign national spouse having their own file and the minor child having his/her own file.

Your son’s age for immigration purposes would be calculated using the Child Status Protection Act (CSPA) and the date the visa becomes available would be used in the CSPA calculation. There are other provisions that govern eligibility under the CSPA. The CSPA was passed by the US Congress with the intention of alleviating the hardships caused by children “ageing out” while waiting for visas to become available and causing family separation. Unfortunately, the law is complicated and is subject to varying interpretations and has spawned several court cases.

Ultimately, it is the US Embassy that has the final say on whether a beneficiary, direct or derivative, is eligible for CSPA protection. In your case where the National Visa Centre has included your son on the visa bill, it is a good indication that he might be protected, but it is not final. It is up to you to pay the visa fee and proceed, and then the embassy will determine, ultimately, whether he gets to migrate with you or not. You may lose the filing fees if you pay them and the embassy deems him not eligible to migrate with you under the CSPA. That is a call you will need to make for yourself and your family.

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 diversity and inclusion consultant, mediator, and former special magistrate and hearing officer in Broward County, Florida. info@walkerhuntington.com