Many of my clients call the office worried: the beneficiary of the immigration process is going to come of age. What can they do? USCIS is one of the slowest working entities in the United States. Given the high number of cases, the limited availability of visas, and sometimes the lack of help and funds from the administration, the truth is that many children age before their process is over. In today's blog we are going to be talking about what happens if the beneficiary of an immigration process becomes of legal age.
The first thing I would like to explain is that USCIS determines that a minor reaches the age of majority upon turning 21 years of age. In many countries, including the United States, a person is considered of legal age at the age of eighteen (18). But for USCIS and immigration purposes, the age of majority is twenty-one (21) years old.
The Child Status Protection Act is the legal document that is responsible for establishing the rules concerning the protection of minors who age while their immigration process is pending. The rules of the Act are the ones that we are going to explain below. To apply the rules correctly, we must know the categories of visas available, as well as the immigration process, and the degree of kinship between the beneficiary and the petitioner. The Child Status Protection Act will be applicable to immediate relatives, to the categories of family petitions, VAWA cases, applicants derived from work visas, diversity visas, refugees and asylees.
The first rule dictates that for all immediate family beneficiaries of American citizens, the age will be frozen at the time the petition is filed. For example, Louis is an American citizen and his son Carlos, who resides in Peru, is 20 years old at the time Louis files the family petition. The family petition takes 10 months to be approved. By then, Carlos has already reached the age of majority (21). However, his age was frozen at 20, because when Louis, the American citizen, presented the family petition, Carlos was still a minor. For this rule to take effect, the beneficiary must be single, otherwise, they will lose their status as a minor.
In the case of applicants derived from asylum requests, the age of the derivative will be frozen on the date the main asylum applicant attended the interview. For example, Jesús presented the asylum application, and his daughter Marta was 19 years old. Marta is an indirect beneficiary of Jesús' asylum application. When USCIS scheduled the interview with Jesús, Marta was 20 years old, therefore, her age was frozen. In three years, Jesús 'asylum application is processed and approved, and Marta is the beneficiary of it, however, when Jesús' application is approved, Marta had been married for 4 months. Even though Marta's age had been frozen at 20 years, which was the age she was at the time of Jesus' interview, getting married makes her ineligible to apply for permanent residence.
The two examples above are the simplest to explain. For the rest of the immigrant categories, be it the beneficiaries of family petitions of permanent residents, the beneficiaries derived from diversity visas, or from employment visas, the calculation of age is a little more complex.
To find out if the beneficiary of the visa is still considered a minor, a mathematical formula is used in which the time the visa was pending is subtracted from the age of the beneficiary when the visa became available. To find out what visa availability means, check our blog and YouTube channel where we give the relevant explanations.
To determine the beneficiary's age at the time the visa was made available, we use the beneficiary's age on the date the family petition was approved, or the age of the first day of the month in which it was approved.
The time the petition was pending is calculated with the difference of days between the date the petition was filed and the date it was approved.
Since I have given you all this explanation, I am going to illustrate it with an example, because in the abstract it is quite a complex idea.
Rocío is a permanent resident and files a family petition on July 1, 2019, for her son Mauricio, who is 20 years old on July 1, 2019. Mauricio reaches his legal age on July 15, 2020. The family petition was approved on October 1, 2020. The time that the petition was pending was 15 months. However, the visa is not available until August 1, 2021. On that date, Mauricio is already 22 years old. To find out if he qualifies for the Child Status Protection Act, we must subtract Mauricio's age (22), which we determine according to the date of August 1, 2021. From that number we subtract the time the petition was pending (15 months) 22 years-15 months = 20 years and 3 months, which makes Mauricio eligible to adjust status. However, Mauricio will have only one year to complete the process of obtaining his immigrant visa, or else he will lose the benefit.
As you can see, this process is complex, and the experience of an expert on the subject will be required to determine the age of the beneficiary in each case. If you need help, or would like a free consultation, call Y. Morejon Attorney, P.A. today. We handle immigration cases, and we can assist you with yours. Here, your problem is our problem.