Q: What if my unmarried nephew age out on the sister case for I-130 F4 catogery when priority date becomes current
A: He may be eligible for a green card under the Child Status Protection Act.
A “child” is defined as an individual who is unmarried and under the age of 21. The recurrent problem was that some petitions took many years to process and the child "aged out" and could not be included in the parents petition. For example, a U.S. brother filing for his sister and her kids. At the time of the initial filing the child was 15 years old. But is took seven years for the USCIS to approve the petition. By the time of the approval, the child was already 22 years of age, aged out and was left in illegal limbo as the parent became lawful residents.
In steps CSPA provided a mathematical formula intended to minimize the number of age-outs. The formula permits a deduction of the amount of time an immigrant visa petition was processing with the immigration service from the child’s actual age on the date their application was filed. We are not talking about the amount of time the person waited for their priority date to become current, but uses the time a petition was filed and the date it was approved.
The formula is a bit complex, but a basic example illustrates how it works. Ana Paula was petitioned by her US citizen brother in 2001. The immigration service took 5 years to process the petition before it was approved. When Ana Paula's priority date finally became current she submits her application for an interview at the Consulate. She is very worried because her older son Sergio, turned 21 three years ago and is now 24 years of age. In the past Sergio was just out of luck and had to wait for his mother to sponsor him. This could take many year and he would remain in an illegal position. But thanks to CSPA, Sergio can deduct 5 years from his age, which would make him 19-years-old for immigration purposes. He is now able to immigrate with the family.
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