Question Corner (November 2014) | CLINIC

Question Corner (November 2014)

Question:

You just agreed to represent an F-2A beneficiary in her application for residency through consular processing.  You learn that she has a 20-year-old unmarried daughter who wants to immigrate as a derivative beneficiary. The priority date is current – in fact it's been current for almost two years.  The daughter will turn 21 in February.  Do you have any reason to worry about her aging-out, as long as she starts the consular processing in her case before her 21st birthday?

 

 

Answer: 

It's tempting to think that you don't have to worry about aging out in this situation, because the daughter is initiating the process of becoming an LPR before turning 21.  But the reality is that any preference immigrant needs CSPA protection if she or he will be over age 21 at the time of residency adjudication.

In this case, the daughter will be 21 in three months, and the CSPA will not protect her from aging out because she did not seek to acquire her residency within a year of the priority date being current.  Can anything be done to preserve her F-2A status?  In this case, it looks possible, because the three-month window should be enough time to request expedited case processing, so that the F-2A derivative daughter can go to her consular interview and return to the United States to enter with her immigrant visa before her 21st birthday.  Moral of the story: check whether any children immigrating in the preference categories who are close to aging out are also applying within a year of the priority date being current.  If not, you need to request that application adjudication be expedited so that the beneficiary can receive his or her residency status before turning 21.