In regards to Diversity Visas, the general rule is that a person who is 21 years old or above cannot receive derivative status from his/her parent who is Diversity Visa lottery winner for the applicable year. Therefore, this person is considered to be “aged out” and cannot be included with his/her parents’ application for a Diversity Visa.
An exception to this general rule is the Child Status Protection Act (CSPA). The purpose of the CSPA is to allow certain family members that just turned 21 years old to remain as “children” under the immigration laws. By qualifying as a “child,” an applicant who is already 21 can then also apply for the visa with his or her parents. However, this can be a somewhat calculated formula in determining one’s eligibility.
To calculate the age for Diversity Visa purposes, one must:
1) Calculate the age of the child on the date when an immigrant visa number becomes “available” or the approval date, whichever is later; and
2) Reduce that number by the days the diversity visa petition has been “pending.”
When an immigrant visa number becomes available is somewhat unclear. Some have interpreted this to mean that the number is available on the first month that one is eligible for an interview. The general definition for when an immigrant visa number becomes available “is the first day of the month of the Department of State (DOS) Visa Bulletin, which indicates availability of a visa for that preference category.” To explain the process, current case numbers are usually published on the visa bulletin 1-2 months before the interview can/will actually be scheduled. For example, the numbers published in August apply to interviews for October. Therefore, the question becomes whether the number is “available” in August or October. Interpreting the definition above, it would be reasonable to assume that the immigrant visa number becomes “available” on August 1 (even if the visa bulletin published on August 15 or some other date in August).
As to the second requirement of when a petition is “pending,” the general definition for Diversity Visa purposes is “the first day of the Diversity Visa mail-in period to the date of the letter notifying the principal alien that his or her application has been selected.” Therefore, if the first day to apply for the Diversity Visa lottery was October 1, 2012, and the applicant won and received the winning notification letter dated May 1, 2013, then this period of time is what is to be reduced from the child’s age (213 days or just over 7 months).
Let’s illustrate with an example using a parent who applies and wins the lottery using the “pending” dates just mentioned (7 months between October 1, 2012 and May 1, 2013). Furthermore, the parent’s child turns 21 on September 1, 2012 and the parent’s immigrant visa number is published as available on December 5, 2012. Since the child would have until approximately April 2013 (7 months after September 1, 2012) before he/she is “considered” as 21years old, he/she should qualify and be able to be included in the parent’s application (via the CSPA scale), assuming the application was filed and received in time.
In conclusion, the formula for determining whether a child, who is approaching or at 21 years old, qualifies as a Diversity Visa beneficiary can be complicated, and even some officials at the Embassies and Consulates have trouble making the correct calculations. It is important to remember that even if your child is 21 years old, she may not be in regards to the Diversity Visa program.
The information contained in this article does not constitute a legal opinion nor does it serve as replacing a proper individual legal consultation. Any use of this information shall be entirely at the risk of the reader.
This article was written by Dotan Cohen Law Offices, an immigration law firm that handles legal matters related to the United States, Australia, United Kingdom, Canada, and Israel. Our contact details are:
Tel. +1-646-797-5717
e-mail: [email protected]