Derivatives aging out while waiting for the priority date to become current

[jr20]

Hi, My Grandmother on my dad side is a US Citizen. She applied for a Green Card for my dad in Dec 2009 under the F3 category. The I-130 was approved in May 2010 (received I-797). At the time, my brother and I were 15 and 18 respectively. This month, his priority date became current with the NVC and we want to understand if there is a way for my brother and I to still be included in the application even though we are not under 21 anymore.

 

[newacct]

No. The I-130 was pending (i.e. from filing to approval) for about 5 months, so you guys did not age out until age 21 and 5 months. At the time his priority date became current, you are way over age 21 and 5 months. Therefore, you have aged out and cannot immigrate as his derivative beneficiary.

 

[reddymade7]

read more details:

Child Status Protection Act (CSPA)​

The Immigration and Nationality Act (INA) defines a child as a person who is both unmarried and under 21 years old. If someone applies for lawful permanent resident (LPR) status as a child but turns 21 before being approved for LPR status (also known as getting a Green Card), that person can no longer be considered a child for immigration purposes. This situation is commonly referred to as “aging out” and often means that these applicants would have to file a new petition or application, wait even longer to get a Green Card, or may no longer be eligible for a Green Card.


Congress recognized that many children were aging out due to large USCIS processing backlogs, so it enacted the Child Status Protection Act (CSPA) to protect certain children from aging out. The CSPA went into effect on August 6, 2002.