Immigration Corner | Will I age out, and what will happen to my child?

Dear Mrs Walker-Huntington,

My grandmother filed for her children, my mother included, back in June 2016. We’ve been waiting for years and we are finally making progress. I am now 24 years old and I am worried that I might “age out”. I recently read about the CSPA act and I am wondering if that would protect me.

I also had a son in 2022. His father migrated in September of that year when he was 24. His entire family left and my whole family will be leaving too. I know I couldn’t add my son as a derivative beneficiary. I don’t have anyone to leave my son with as everyone I’ve asked said they wouldn’t be able to help.

What do you think is the best way forward?

I hope I hear from you soon. Thank you in advance.

– S.J.

Dear S.J.,

There is a concern that you might age out of your mother’s filing. As a derivative beneficiary of your mother’s petition, once you reach the age of 21 years, you might be considered too old to be a child (for immigration purposes) and a derivative beneficiary. The Child Status Protection Act (CSPA) was passed by the US Congress to protect persons such as yourself. However, it is a complicated rule that requires a calculation based on several factors, including how long the petition was pending, when the derivative beneficiary reached age 21 and when the visa actually becomes available.

When the process is in the document qualifying stage, you may or may not still appear on the filing. If you do, your family should process the paperwork, but please know that at the actual visa interview, the embassy might advise that you are not eligible for the visa. Similarly, if you do not appear on the filing and are not scheduled for a visa interview, when your mother appears for her interview, she should ask for you to be considered for the visa. The embassy will then make the CSPA calculation to determine if they will process your visa application.

If you are able to secure a derivative immigrant visa, you are correct that your son would not qualify for a visa as the derivative of a derivative. You would have to make your entry into the United States and apply for a Re-Entry Permit to allow you to remain outside the United States to care for your son without losing your residency status. You would then file a petition for your son to migrate, and you would both migrate to be with your family at a later time.

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