Q: Can unmarried kids immigrate as derivatives?
I petitioned for one of my brothers as a citizen of the USA. The petition was filed in April 2010 and approved in October 2014 by USCIS. The kids were under 15 years old at the time the petition was approved in 2014. The projection is that the visa will be available in 2025 and both kids will be older than 25 years but plan to stay unmarred.
Can they immigrate with parents as derivatives under new guidelines?
A:
Whether your brother’s children will still qualify as derivatives when the visa becomes available will depend on whether they qualify for protection under the Child Status Protection Act, however, as this calculation requires the date the priority date first became current, there’s no way to perform the calculation until the priority date is actually current.
You can read more about CSPA and the recent policy change regarding which chart the government will rely on for the calculation, here: https://www.cliniclegal.org/resources/uscis-policy-and-procedure/uscis-changes-cspa-age-calculation#:~:text=The%20CSPA%20allows%20them%20to,derivative%20in%20the%20other%20categories
A:
Under U.S. immigration law, unmarried children under the age of 21 of the beneficiary of a family-sponsored petition may be considered derivative beneficiaries. However, once they turn 21, they generally "age out" and lose eligibility as derivatives. There are protections under the Child Status Protection Act (CSPA) that may preserve their eligibility, depending on the specific circumstances of the case, but a careful review of the case details would be necessary to determine applicability.
Sincerely,
James L. Arrasmith
Founder and Chief Legal Counsel of The Law Offices of James L. Arrasmith
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