Help, my girl's turning 21
Dear Mrs Walker-Huntington,
Hoping this email reaches and you are able to respond as I know you have a lot of emails.
We, my husband and I, along with our two children, have been filed for by his brother who is a citizen of the US. I have emailed the National Visa Center (NVC) but, because of clauses, they replied that they could not give us details of where we are in terms of time. We are concerned that we have a daughter who turns 21 in July of this year and we want to know if she would still be eligible.
I would appreciate it if you could let me know where we currently stand as I am not getting anywhere with the National Visa Center in terms of time.
One of the most complex areas of immigration law is this question of when does a child 'age out' of the visa processing. Numerous papers have been written on this subject and seminars are held to assist immigration practitioners to interpret the Child Status Protection Act (CSPA).
If a Petition for Alien Relative is filed for a person under 21 years of age, (a direct beneficiary) no matter how long the petition takes to be adjudicated the person remains a minor for immigration purposes. So, if a Lawful Permanent Resident (Green Card Holder) parent files for a Green Card for their 19-year-old son and that petition takes four years to be adjudicated when the son is now 23 years old, the direct beneficiary son maintains his child status and preference category.
However, if a person is a derivative beneficiary i.e. he or she is the child of a direct beneficiary - US citizen parent files for a Green Card for her adult son and grandchild - the grandchild does not maintain child status if he or she turns 21 years of age before getting a visa appointment.
In your case, you need to determine what the priority date is. That information should be on documentation that either your husband or your brother-in-law has received from the National Visa Center. Once you have determined your priority date, you should go to www.travel.state.gov/visabulletin. Examine the Visa Bulletin for the current month to determine what priority dates are being processed in the fourth preference category (US citizen siblings). In May 2010, fourth preference visas are available for persons with a priority date of May 15, 2000 and prior.
Your husband needs to contact the National Visa Center in writing and by telephone to advise them that your daughter will be 21 in July 2010 and ask them to preserve her status as a child. Depending on what your priority date is in relation to the priority date that is currently being worked on, the NVC may send you an invoice to pay for her visa. Additionally, depending on your priority date the NVC may advise you that the final decision as to whether your daughter will be given an immigrant visa rests with the Consular Office at the US Embassy in Kingston. If they send you a visa invoice please pay for the visa. You may lose the visa fee if at the visa interview the officer decides that your daughter will not be given the visa.
It is an unsettling process for many people, but most - not all - persons who are 'ageing out' are able to preserve their status, once they make the request to the National Visa Center and the derivative beneficiary has not yet turned 21 or is within a year of turning 21. Act promptly to notify the NVC. The NVC normally gives information to the petitioner, beneficiary, the designated agent or an attorney.
Dahlia A. Walker-Huntington is a Jamaican-American attorney who practices in Florida in the areas of immigration, family, corporate and personal injury law. She is a mediator, arbitrator and Special Magistrate in Broward County, Florida. email@example.com or firstname.lastname@example.org.