Let’s analyze the following scenario: Your uncle is a United States citizen and you want to immigrate to the United States. You cannot file form I-130, as nephews and nieces of a United States citizen are not one of the family preference categories. However, if your mother wants to immigrate to the U.S. as well, she can file form I-130 as she is a sister of a U.S. citizen and she could include you as a derivative beneficiary in the form I-130 as her child. Please see more information about which family members can be sponsored by a green card holder when you click here.
The number of green cards issued for each family preference category is limited, and thus you and your mother will not get your green cards immediately. It may take years until your mother’s visa application number will become current (you have to check the Visa Bulletin every month to find out when your visa number becomes current on this website). Please see more information about when the visa becomes current here. While you are waiting for the visa number to become current, an important question often arises—if you must be a child (under 21) in order to get the green card through your mother’s petition, will you age out while you are waiting for the visa number to become current? Until what age are you considered to be a child?
In immigration law, a child is defined as a person who is under the age of 21 and is unmarried. Many children who meet this definition when they originally apply for a green card (or in your case when your mother applied for her green card and included you as derivative beneficiary) are no longer children when their green card application is approved, or when their visa number becomes current. That was a reason why Congress enacted the Child Status Protection Act (“CSPA”) in 2002.
CSPA provides a formula for how to calculate one’s age for immigration purposes. CSPA applies only to certain categories of applicants and one must be aware that the CSPA age will be calculated differently for a person who is an immediate relative of a U.S. citizen and for a person who filed for example as a derivative beneficiary. If you are an immediate relative of a U.S. citizen your age will freeze as of the date Form I-130 is filed and if you are not yet 21 years old at that time, you will not age out, although you must remain unmarried or you will no longer qualify for the green card.
If you are derivative beneficiary, there is a specific formula that must be used to calculate your CSPA age. The formula is as follows:
Age at the time of visa availability – number of days the petition was pending = CSPA Age
‘Age at the time of the visa availability’ refers to the age you are when a visa number becomes available. For example, your mother may have filed the I-130 petition when you were 15 years old, but a visa number may not be available for another 10 years due to the backlog in immigrant visa availability, so you would be 25 years old when the visa becomes available.
The ‘number of days the petition was pending’ is the difference between the day the I-130 petition was filed with the USCIS and the day the petition was approved.
If you as a derivative beneficiary are 21 years and 10 months old at the time your mother’s visa becomes available, and the I-130 petition was pending for 11 months, you would qualify for the visa, since 21 years and 10 months minus 11 months would result in a CSPA age of 20 years and 11 months. If the petition was pending for 8 months, then you would not qualify anymore, as your CSPA age would be 21 years and 2 months.
In addition, if you marry while your mother’s petition is pending, neither you nor your spouse are eligible for green card as derivative beneficiaries.
To find out more about the new rules or other investor visas, contact Scott Legal, P.C.
Ian E. Scott, Esq. is the Founder of Scott Legal, P.C. He can be reached at 212-223-2964 or by email at firstname.lastname@example.org.
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