Issues for U-Visa Principals and Derivatives Aging Out

U nonimmigrant status, often referred to as the “U Visa,” is a form of immigration relief available to noncitizens who are survivors of serious crimes in the United States. We discuss the U-Visa and eligibility requirements here.

• Spouses, children, parents, and unmarried siblings under 18 years of age.
• If the principal is under 21 years of age at the time the principal properly filed the petition, qualifying derivative family members include the principal’s spouse, children, unmarried siblings under 18 years of age (on the filing date of the principal’s petition), and parents.
• If the principal is 21 years of age or older, only the spouse and children are eligible for derivative status as qualifying family members.
• Although there is a 10,000-visa limit cap set by statute for the number of U visas that can be granted each year, this numerical limitation does not apply to derivatives.

The age of the qualifying derivative family member is established upon the date on which the principal filed for the U-Visa. This protection will apply to either the principal applicant or the derivative who turns 21 or 18 years of age while the U-Visa form I-918 petition is pending. This means that principal applicants applying for their parents will still be eligible to have the U-Visa derivative application approved for parents even if the principal applicant turns 21 years of age while the application is pending. Furthermore, derivatives who are children under 21 years of age will continue to be eligible for U-Visa approval as a derivative beneficiary of a parent’s principal U-Visa application even if the child turns 21 while the petition is pending.

Age out protection will not always occur in situations where a son or daughter of a potential parent derivative ages out. Fortunately, if the age out of the son or daughter principal occurs while the principal application is pending, the son or daughter can later file for the derivative parent even if the filing occurs at an age over 21 years of age. However, unfortunately, if the age out occurs after the principal U-visa is approved, this principal son or daughter will not be allowed to petition for their parent after the U-Visa is approved.

With respect to derivative children, if the derivative petition was never filed, but the child ages out while the principal petition is pending, the principal U-Visa applicant parent can still apply for the derivative status for the child even if the child is over 21 years of age. The key is that the age out occurs while the principal application is pending. If the age out occurs after approval of the principal application, then the parent principal will not be able to apply for the aged-out child in this situation.

Note that it is not entirely clear whether an age out that occurs after the principal application is approved even when the derivative application is pending will still receive age out protection. There is still a chance USCIS may deny this case.

Finally, children derivatives or principal applicants applying for siblings must remain unmarried. Oddly enough, this is not the case for children principal applicants applying for parents where these children must meet the age requirement, but do not need to be unmarried to still qualify to apply for U-Visa derivative status for parents.