Wed | Mar 21, 2018

Immigration Corner | Hurt by the slow process

Published:Tuesday | May 24, 2016 | 12:00 AM

Dear Mrs Walker-Huntington,

My son's father was filed for by his mom. My son was added on his father's application. His father's application was approved and the priority date was Oct 15, 2007, when my son was 15 years old. Well, his dad recently got his visa approval in Jamaica and we found out that my son would not be able to go with his dad because he is now 24 years old. We were told the visas are issued based on age at the time they become available and not the approval date. How do we proceed? Would my son's father have to file a new application, since he is over 21 years?

- L.C.

Dear L.C.,

Unfortunately, many persons fall into the situation you have just described. They are derivative beneficiaries of immigrant visa petitions and the filing takes years to be processed. When the visa is finally available, the derivative beneficiary ages out and cannot travel with their parent.

This happens because it takes so many years for the beneficiary's petition to be processed sometimes seven to 12 years. Congress passed the Child Status Protection Act (CSPA) in reaction to outcry. However, the CSPA did not operate as many wanted and thought it would have. Any beneficiary who is not a direct beneficiary of a US citizen petition, or who is a derivative beneficiary, can age out if the visa becomes available after they are 21 years old. Several affected persons sued the US Government and the case went all the way to the US Supreme Court a couple of years ago. The Court agreed with the Government's interpretation of the CSPA and persons such as your son continue to be negatively affected by the long processing time for green cards. The CSPA is complicated.

In this case, your son's father will have to now file a direct petition for him, which is going to take at least seven years. As long as the father is a green-card holder, the son cannot marry as that will void the petition. A green-card holder cannot file for a married son or daughter.

- Dahlia A. Walker-Huntington is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal and personal injury law in Florida. She is a mediator, arbitrator and special magistrate in Broward County, Florida.