Dear Atty. Lou,
My husband has an approved petition for his under 21 year old son. However, his son will be 21 years old this 8 April 2009. The petition was only approved on 3/24/2009. Please let us know what we can do so he could still avail of the benefits derived from that approved petition. What are the actions then to be taken. Your immediate response will be greatly appreciated.
AT Stepmom
Dear AT Stepmom,
You did not indicate in your letter your husband’s status as a petitioner. If he is a US citizen, then he may avail of the provisions of the Child Status Protection Act (CSPA) The CSPA provides that if a U.S. citizen files a Petition for Alien Relative (Form I-130) on behalf of his/her child before he or she turns 21, the child will continue to be considered a child for immigration purposes even if USCIS does not act on the petition before the child turns 21. The date of filing of the petition is the CSPA age of the child. Hence, if the US citizen files the petition when the child was 20 years old and no approval is yet received from the USCIS after he had turned 21 years old, the CSPA age is still 20 years and he shall still be considered a minor child.
In case your husband is still a green card holder, then he may still benefit from the provision of the CSPA when the priority date becomes current under second preference. Children of lawful permanent residents benefit if a Form I-130 is filed on behalf of their children and children of principal applicants in preference categories. There is a mathematical formula used to calculate the CSPA age. This is determined on the date that the visa, or in the case of derivative beneficiaries, the principal alien’s visa, becomes available. The CSPA age is the result of subtracting the number of days that the immigrant visa petition was pending from the actual age on the date that the visa becomes available. If the ‘CSPA age’ is under 21 after that calculation, the child will remain a “child” for purposes of the permanent residence application.
Hence, in your particular case, if your husband is a US citizen, your stepson will still be processed for the visa as an immediate relative of your husband and his CSPA age is less than 21 years old which is the age at the time of the filing of the petition. You have to wait for the checklist or the visa processing papers from the National Visa Center which will soon be mailed to you. As soon as you received these papers, your husband may begin the process of obtaining the immigrant visa for his son. Good luck.
Atty. Lou
*(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 415.397.0808; email at law@tancinco.com or check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to law@tancinco.com
