Immigration Corner | I aged out of my grandmother’s filing

Dear Mrs Walker-Huntington,

I have a concern. My grandmother, who is living in the USA, filed for my mother, my younger brother and me. We paid all the fees and submitted all the documents asked for by the National Visa Centre. They sent us the date to go to the US Embassy here in Jamaica, but first we had to do the medical, which all of us did.

However, when we went to the interview at the US Embassy, they told my mother that since I was over the age of 21 when the filling came through, I would not be migrating with her to the USA.

My mother is now in the USA, and she filed an I-130 for me to join her, but it’s now almost one year and I haven’t heard anything from the embassy. Can you advise, please?

– SB

Dear SB,

When your grandmother filed the petition for your mother – her daughter – your mother was the beneficiary of that filing. Anyone else, such as you or your brother, who might be eligible to migrate with your mother, is considered a derivative beneficiary. When a derivative beneficiary passes the age of 21, then can ‘age out’ of the filing, i.e., become an adult for immigration purposes.

The United States Congress considered that this ageing-out factor causes family separation and attempted to address the situation in 2002 by passing the Child Status Protection Act (CSPA). Unfortunately, like a lot of legislation, this CSPA is unnecessarily convoluted and still results in family separation. Instead of simply saying any derivative beneficiary who is under 21 when a petition is filed remains a child for immigration purposes even if the process takes years, the CSPA has a complicated formula that is used to determine if a person can retain child status for immigration purposes.

The US Embassy in the intending immigrant’s country makes the final determination if a person qualifies under the CSPA. It appears that the US Embassy in Kingston determined that you did not. Your mother followed the correct procedure by immediately filing for you herself. You indicated in your email that your mother filed an I-130 for you “again”. An I-130 was never filed for you by your grandmother, it was filed for your mother.

As a green card holder, your mother’s filing for you is in the F2B preference category – the adult, unmarried daughter of a green card holder. In that category, visas are available for persons who were filed for before September 22, 2015. If you marry while your mother is a green card holder, it will void your petition; and if you marry when your mother becomes a US citizen, it will increase the waiting time for a visa to become available by several years.

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