Immigration Corner | Will his filing be approved?

Dear Mrs Walker Huntington,

My parents are US citizens and have put in filing applications for my adult brothers and me.

An application was also submitted for my son, who is over the age of 21. Do you think his filing will be approved? Thanks in advance.

MMR

Dear MMR,

Petitions by US citizen parents who file for their adult son/daughter can fall into two categories: married or unmarried.

If the son/daughter is married, they would be in the F3 preference category, and those petitions are currently taking 14 years for a visa to become available (2008). If the son/daughter is unmarried, they are in the F1 preference category, and those visas are now taking eight years for a visa (2014).

While those categories – particularly the married son/daughter category - have always taken several years, the waiting time for a visa has been significantly extended since the COVID-19 pandemic. The waiting time for a visa is supposed to reflect the number of persons waiting for a visa divided by the number of visas available for each year. Since the pandemic, we have seen the available dates keep being rolled back, making the wait time longer.

The US Department of State processes the visa applications after they have been approved by the Department of Homeland Security, and they have promised to have backlogs cleared by October 2023. With that promise, we hope to see these extremely long waiting times cut and families reunited.

Your son could not have been filed for by your parent. He may have been listed on the petition that was filed for you as your son and be entitled to derivative beneficiary status – if eligible. To be a derivative beneficiary in this instance, he has to be considered a child for immigration purposes – even if he is over 21 years old when the visa becomes available. You indicate that he is already over 21 years old, but you didn’t indicate when the petition was filed by your parents. When the visa becomes available for you, a calculation under the Child Status Protection Act will need to be done to determine if he could be afforded child status. In most instances, if he is already 21 years old, his information will not be included with the visa fee and package documents sent from the National Visa Center – he will automatically ‘age out’. However, at the interview, you can request the consular officer’s determination of his ‘child status’. You can also do the calculation yourself or hire an attorney to do it on your behalf.

There have been instances where the consular officer miscalculates and when shown a calculation from an attorney, they reverse their position and process the derivative beneficiary as a child.

Dahlia A. Walker-Huntington, Esq. is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal and international law in Florida. She is a diversity and inclusion consultant, mediator and former special magistrate and hearing officer in Broward County, Florida. info@walkerhuntington.com