But my child was still in diapers when the petition was filed!

Dear Attorney Gurfinkel:

In 1988, my sister petitioned me and my family. At the time, our eldest child was only 6 months old. Recently, we were called in for our interview at the Embassy, but our eldest child was left off the list because she was already over 21 years of age and thus had “aged out”.

How is it that my child is not included under the petition, since she was clearly under 21 years of age when the petition was filed?

Very truly yours,

R.J.

Dear R.J.:

Many people are confused as to which family members are, and are not, included under a family petition. Remember, what is important is not only the circumstances that exist at the time the petition is filed, but also the circumstances that exist when the visa is available (or priority date is current). Thus, although your child was under 21 when the petition was filed, her eligibility for a visa is evaluated when the priority becomes current.

In your case, your child had aged out by the time the priority date was current, and may no longer be eligible to qualify as a “child” under that petition.

There are other circumstances or events that may occur after a petition is filed that could also affect a person’s eligibility for a visa, such as marriage of a beneficiary, death of the petitioner, etc. For example, a petition may have been filed while the beneficiary was single. However, if that beneficiary later gets married, it could affect his or her eligibility for a visa, even though he or she was single at the time the petition was filed. (For example, if under petition by an immigrant parent, a beneficiary’s marriage voids the petition. If under petition by a US Citizen parent, the waiting time for the visa would be longer. If he or she were a derivative child, such as a grandchild of the petitioner, who then got married at age 19, he or she would no longer be included in the petition.)

Similarly, although a petitioner is clearly alive when the petition is filed, if, Heaven forbid, the petitioner dies before the visas are issued, it could result in the automatic revocation of the petition, unless the beneficiaries qualify for humanitarian revalidation/reinstatement, or if they were in the US at the time of the petitioner’s death, and could qualify under the new “Survivor Law”.

In your case, although your eldest was under 21 when the petition was filed, she has now “aged out”. It could be possible that she may qualify for benefits under the Child Status Protection Act (CSPA), which has a mathematical formula for computing a child’s age (based on the length of time the petition was pending between filing and approval and subtracting that time from the child’s age.) However, I would suggest that you seek the advice of a reputable attorney, who can evaluate your situation, and determine which family members are still eligible under your petition.

*      *      *

WEBSITE: www.gurfinkel.com

Four offices to serve you:  PHILIPPINES: 8940258 or 8940239; LOS ANGELES; SAN FRANCISCO; NEW YORK: TOLL FREE NUMBER: 1-866-GURFINKEL (1-866-487-3465)