Over 21 visas revisited

ON FEB. 6, the Department of State issued a cable refining the initial guidelines it had set on issuance of visas to children who had turned 21 while waiting for their petitions for immigration and receipt of visas.

As a brief background, President George W. Bush signed the Child Status Protection Act (CSPA) into law on Aug. 6, 2002. The law seeks to reunite families who otherwise would be separated for great periods of time once the child turns 21 (technically called aged-out).

Child is defined as a biological or adopted child or stepchild who is below 21 years of age.

When the child of a US citizen turns 21, he or she is no longer considered an immediate relative (by immigration definition) and thus automatically converts to a different category. The visa category of the child of a US citizen is IR2. For the unmarried, over 21 son or daughter of a US citizen, the category is F1.

When an IR2 child turns 21, this son or daughter moves back to the preference categories and becomes subject to numerical limits (quota). Consequently, instead of waiting for months, the F1 son or daughter must wait for decades.

The CSPA of 2002 seeks to prevent this extended separation of families, not just of US citizen parents and their children but green card holder parents and their children as well.

The revised guidelines follow:

Children of US citizens are not problematic since the determination is clear cut: The beneficiary (child) remains eligible even after turning 21 since determination of age is based on the date the petition was filed for the beneficiary.

F2B to F1 -- No problem as well, since the rule simply requires the beneficiary to submit a declaration stating his/her preference to remain in the F2B category instead of being automatically converted to F1 due to the naturalization of the petitioner parent.

F2A to F2B -- Gets a little complicated. The revised formula now states the following: Age is determined by taking the age of the beneficiary on the date a visa first became available (the date the priority date became current and the petition was approved, whichever came later) minus the time it took to adjudicate the petition. The rule specifies the time on the first occurrence, i.e., from the time a petition is filed to the time it is approved, but does not specify the time between petition approval and application for an immigrant visa.

Who are not qualified? Beneficiaries whose priority dates have become current, but who have not or could not apply because they have aged out.

The formula set forth by this latest cable is shown below:

1. Determine the alien's date of birth

2. Establish when the petition was filed

3. Determine date of petition approval

4. Calculate how long the petition has been or was pending

5. Check when the beneficiary's priority date became current

6. Determine when the visa became available.

Age of alien on date visa became available is No. 6 minus No. 1.

Age for CSPA purposes: Age at time visa became available minus the length of time petition was pending (No. 7 minus No. 4)

The CSPA applies if:

a) Alien aged out on or after Aug. 6, 2002

b) Alien aged out before Aug. 6, 2002, but before aging out had applied for an immigrant visa and was refused under 221(g) of the Act.

CSPA does not apply if:

a) Alien aged out before Aug.6, 2002 and failed to apply for a visa; or

b) Alien applied after aging out and was refused for having aged out.

Advisory opinion is needed if:

· Alien applied before Aug. 6, 2002 but was refused not based on 221(g) - the consul requires additional evidence to establish entitlement, but based on other provisions of the Act such as 212(a)(1) health related grounds; 212(a)(4) public charge issue; 212(a)(5) labor certification and other documentation requirements; or an inadmissibility ground under Section 212 of the Act that was subsequently waived, for example, fraud under 212(a)(5)(C).

· If the refusal has not been overcome or waived, alien is not qualified for a visa and/or CSPA.

Patriot Act 45-day window

An alien whose petition was filed before Sept. 11, 2001 remains eligible for child status for 45 days after turning 21, even if the alien did not file an immigrant visa application before Aug. 6, 2002.

Visa application within one-year period

The Department of State interpretation requires the alien/beneficiary to apply for the immigrant visa within one year of the visa becoming available. For purposes of this rule, if the applicant goes through the consular visa processing instead of applying for adjustment of status in the United States, the beneficiary must submit his/her DS 230 Part I within one year of being notified that an immigrant visa is already available. This means the month when the priority date of the beneficiary became current since it would be the month when the cut-off availability date covered the beneficiary's priority date.

Since the law intended the unity and not separation of families, the Department of State cable is being challenged since beneficiaries who were not able to apply when the over-21bill was not yet law are being deprived of a benefit. The Law Office of Attorney Norma Molinar, member of the American Immigration Lawyer Association intends to challenge this interpretation. Stay tuned.

For more information or assistance, you may contact Crispin R. Aranda at usvisastoday@yahoo.com or at the Immigrant Visa Center in the Philippines +632 411-0806, +632 414-2655 and +632 373-6799 or at the San Francisco Law Office at +415 834-1052.