US VISA- IMMIGRATION CORNER: Why didn’t you file a petition already?

Dear Attorney Gurfinkel:

I immigrated to the US in 2008 through my mother’s F-3 petition (married son/daughter of US citizen), which she filed in 1990. At the time my petition was filed, my son was only six years old. By the time the priority date became current and my visa was issued, I was told he had “aged out” and had to be left behind. I have not consulted with any attorney yet, but I want to know if he could have been covered by the Child Status Protection Act (CSPA), and can he still come to the US under my mother’s petition?Very truly yours, LG

Dear LG:

With regard to your child’s eligibility for a visa under the CSPA, I want to emphasize to everyone that eligibility is NOT based on the child’s age when the petition was filed, but instead on the child’s age when the priority date becomes current. Therefore, the fact that a child may have only been a baby, six years old, etc. when the petition was filed does not have any bearing on CSPA eligibility. (The only exception to this rule is when a US citizen is petitioning his or her minor child. In that case the petition must be filed before the child’s 21st birthday.)

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There is a complex mathematical formula to determine a child’s CSPA eligibility. In your particular case, based on that mathematical formula, your child’s CSPA age came out to be over 21. However, what makes me sad in your particular case is that you immigrated in 2008 and could have immediately filed your own petition for your adult single child in the F-2B category. Right now, they are already processing adult single children of immigrants who were petitioned in 2011. Had you filed your petition as soon as you got your green card in 2008, your adult single child could have already been here by now. So, all those years were wasted or lost, while you were wondering or thinking about options or solutions and waiting over 12 years to consult with an attorney.

This is a very common situation among immigrants: they have questions, issues or concerns about their family’s immigration situation. Rather than consulting with an attorney or taking immediate action to pursue immigration benefits, they “think about it” or do absolutely nothing. That is why if a person has questions about their immigration situation, or they have been denied or refused a visa and they think they may be eligible, they should immediately consult with an attorney, versus waiting years and years to do so. Perhaps had they done something right away, they or their family would have already been eligible for a green card.

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