Short Answer: Maybe. There is a complicated formula that determines the child’s eligibility, but the closer the child is to 21 years of age the higher the likelihood they can come to the United States.
Long Answer: We recently had an interesting case at our office, where the Beneficiary of an approved “Immigrant Petition for Alien Worker” visa filed by her potential employer had an issue with one of her two children. She and her family were scheduled for a visa interview in their home country. Much to their dismay, the older child was not included in the embassy interview list. This was because the embassy had determined that the older child had “aged out” as she was 21 years old. They no longer considered her as a child for immigration purposes. However, according to our analysis, the older girl was still a “child” under the immigration laws pursuant to the Child Status Protection Act (CSPA).
We argued that as a result, she should be allowed to immigrate with her family. Under the 2003 State Department Cable guidance, the CSPA covers derivatives of an employment-based petition. Additionally, the cable explains how to calculate a child’s age for CSPA purposes:
(if you have a hard time calculating the time between dates, use this handy CSPA calculator: http://www.immihelp.com/immigrant-visa/cspa-calculator/ )
1. Alien’s date of birth
2. Date of Petition filed
3. I-140 Approval date
4. Length of time Petition was pending
5. Date Petition became current
6. Age of alien on date Visa became available
7. Age for CSPA purposes = age at time visa became available minus length of time pending.
If you While the older child was technically over the age of 21, applying the above formula made her “adjusted” age 20 years, 10 months, and 29 days for purposes of the CSPA. As a result, she should be eligible to interview at the embassy with her family. Keep in mind that using CSPA is both nuanced and tricky.
In addition to this formula, there are several other requirements that must be met before CSPA will attach. Also note that many guidances contain terms of art, specific to immigration law. Speak with an experienced immigration attorney about your case if you think CSPA could apply to you.
-W. Whitfield Hyman, esq.
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