Children Aged 21 and 'AGEING OUT' Protection...The Imm. Law 'math' is NOT that simple!!
The e-DV application instructions on this 'seems' pretty straight fwd;
#14.......
U.S. law protects children from “aging out” in certain circumstances. If your electronic DV entry is made before your unmarried child turns 21, and the child turns 21 before visa issuance, he/she will be treated as though he/she were under 21 for visa-processing purposes.
However it is anything but simple !
The law it refers to is called '
The Child Status Protection Act of 2000' and it uses a
formula to calculate the 'adjusted age' of a child ON THE 1ST DAY A VISA IS AVAILABLE for him/her.
It has been originally developed to apply to kids on family based GC cases, and modified a bit to apply to DV kids. What is important in that formula is a term called 'Petition Pending Period' and for DV kids this is---------> The date on the 1st NL MINUS 1st date of e-DV application period. And this can range anywhere from 6-9 mos. This is the period 'adjusted' from kid's 'current' age.
The rule simply say,
on the day the DV CN become current, kid's adjusted age has to be below 21., and he got 1 yr from the 'current date' to get the visa. (i.e. On the DV CN current date, he can be NO MORE than 21 yrs PLUS 6-9 months!!)
If one hits 21 AFTER the e-DV application and depending on his b'day and the 'current month' , one can get disqualified for a visa. KCC does the calculation and may or may not include the child in the 2nd NL. But if the child is below 21 as of one's e-DV application date, one HAS TO include him/her no matter what the future holds.
Hope this may be helpful for 'some' DV winners. I came to know this 'cos a family I know was affected by this and the kid missed the mark by ~3 mos and few days !!
Best !
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Formula;
(as found at the end of
http://travel.state.gov/visa/laws/telegrams/telegrams_1369.html)
1. Alien''s Date of Birth:
2. Date Petition Filed:
3. Date Petition Approved:
4. Length of Time Petition Pending =#3 minus #2
5. Date Petition Became Current =
1st of the month CN become current
6. Date Visa Became Available (Later of #3 or #5) =
7. Age of Alien on Date Visa Became Available = #6 minus #1
8.
Age for CSPA purpose =
Age at time Visa Became Available minus
Length of Time Petition Pending = #7 minus #4:
#2 & 3 are not directly applied to DV, hence they have made a different criteria for DV.
(found at Page#4 of
http://www.uscis.gov/files/pressrelease/CSPA2_pub.pdf)
Section 3 of the CSPA also applies to derivative DV applicants. Because the DV application and adjudication process differs substantially from the application and adjudication process for preference categories, the treatment of DV derivatives will also be somewhat different. For the purpose of determining the period during which the “petition is pending,” Service officers should use the period between the first day of the DV mail-in application period for the program year in which the principal alien has qualified and the date on the letter notifying the principal alien that his/her application has been selected (the congratulatory letter). That period should then be subtracted from the derivative alien’s age on the date the visa became available to the principal alien.
http://travel.state.gov/visa/laws/telegrams/telegrams_1429.html
For more info
http://www.uscis.gov/sites/default/files/files/pressrelease/CSPA2_pub.pdf
http://www.uscis.gov/sites/default/...-Based_Priority_Date_Retention_Final_Memo.pdf
http://shusterman.com/pdf/cspa4_30_08.pdf
