As we mentioned in our last article, for 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:
- Calculate the age of the child on the date when an immigrant visa number becomes “available” or the approval date, whichever is later; and
- Reduce that number by the days the diversity visa petition has been “pending.”
We also mentioned in the last article that, when an immigrant visa number becomes available is somewhat unclear. We said that 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 again, 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 last article was 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” in August or October.
However, recently we have received information that sheds some light on this “availability” issue, which suggests that (for purposes of the CSPA) Diversity Visa applicant’s case number is considered available in the month that he/she is first eligible for the interview – thus, October (and not August) for the example above. According to a legal division of the Department of State:
“Generically speaking, visa availability date is determined by the visa bulletin. If the visa bulletin indicates that a visa will be available on October 1, then October 1 is the date we must work with. The fact that the case was prepared prior to that date or that the visa bulletin was published before that date have no bearing on what the date of visa availability is.”
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).
So what does this all mean? This means that if a Diversity Lottery winner/parent has a child turning 21 on August 1, 2012, and their pending date is about 7 months, then in order to include the child on the application as a derivative, the parent must be eligible for an interview (i.e., case number becomes available) before March 2013. If the parent is still waiting for after March, then the child will now be considered “aged-out” and not be allowed to be issued a visa under the Diversity Visa program.
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 21 years in regards to the Diversity Visa program, under the Child Status Protection Act.
All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader.
This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Canada, Australia and England.
