Being a Parent in a Visa Petition - Part I
--This article is the first in a two-part series

Happy Father’s Day to all the fathers! As we observe this holiday, I feel compelled to discuss this topic in the context of immigration.

Being a parent is never easy and so why would it be any different in the immigration context. Many of our readers have asked questions about issues they have encountered while petitioning for their children. These range from children “aging out” to proving paternity. Below, I will answer some of these questions. Please note that the advice below presumes the regular regions of chargeability for an immigrant visa and may not apply to some countries. Also, the discussion of the Child Status Protection Act does not cover all the nuances involved in that complex area of the law.

My petition for my child was approved. Can she now get her green card?

It is important to keep in mind that the approval of a visa petition simply validates the petition. It confirms that the relationship is valid. The approval by itself does not grant residency to the child nor grant the right to it.

Once the petition is approved, then we must see whether an Immigrant Visa is now available. A U.S. citizen petitioning for his or her child who is under 21 years of age is considered an immediate relative and has a visa immediately available. There is no quota for immediate relatives and thus when the petition is approved, the child is eligible to file for a green card. If the child is in the U.S., she can apply for adjustment of status. If the child is abroad, she can apply for an Immigrant Visa to enter the U.S.

But what if my child just turned 21 years old while my petition was pending? Does that mean he has aged out and has to wait longer to get a green card?

On August 18, 2002, Congress enacted the Child Status Protection Act (CSPA). This provides age-out protection to children who are beneficiaries of their parents’ visa petitions. Under the CSPA, if you are a U.S. citizen petitioning for a child under 21 years of age, and the child turns 21 while the petition is pending, then your child will be considered as remaining under 21 perpetually. Thus, turning 21 years old will not delay his or her permanent residency.

If you are a lawful permanent resident petitioning for a child then normally there is a quota , and thus will face a backlog. This is also referred to as awaiting a “priority date.” The quotas vary depending on whether the child is under 21 years of age (2A category) or over 21 years of age (2B category). So, while the Department of State is currently processing petitions filed for 2A in July 2008, the 2B category is backlogged to May 2003. Therefore, an “aging-out” can cause a serious delay in the petition.

The CSPA seeks to cure this aging-out by subtracting the pending time of the petition from the age of the child. The “pending time” is defined as the date of the filing of the petition, until the date the petition is approved or the visa becomes available, whichever is later. If under this formula, the child’s age is calculated as under 21, then he may benefit from his permanent resident parent’s petition.

The rest of this article will be continued in the next issue.