One of the worst things that can happen to a parent hoping to immigrate is being told that their dependent children cannot accompany them. But this happens more than you think—sometimes due to the law, but sometimes due to an officer’s mistake or misunderstanding of the law. We have seen this especially at the US Consulate in Mumbai, India. In general, minor children under the age of 21 are allowed to accompany their parents as derivative visa applicants. However, if the child turns 21 or older, the child will “age out” and be deemed too old to be considered a child under the US immigration law. Fortunately, the Child Status Protection Act (CSPA) may be able to provide relief under these types of situations. The CSPA applies a special formula to calculate the age of the child. In some cases, the calculations may render the child under the age of 21–even if he/she is biologically 21 years or older.
We have seen a disturbing spurt of denials from US consulates abroad where children are being refused their visas even when they technically qualify. Often times, the consular officers are either ignorant of the CSPA or miscalculate the age of the child under the CSPA. These errors can have serious consequences for the family, resulting in lengthy delays and more importantly, forced separation.
If your child’s visa has been denied, it is important to identify the grounds for the visa refusal. Was the visa refused for some minor deficiency such as an incorrectly executed medical or an improperly completed I-864 Affidavit of Support? Or was it denied because the officer deemed the child to have aged out? If it was due to an age out, the next step is to determine whether a CSPA calculation was conducted. If the officer did consider the child’s age under the CSPA, it must then be determined whether the analysis is correct. Sometimes, even with the CSPA being applied, a child’s adjusted age may still be 21 or over. On the other hand, in many cases, the CSPA does bring the child’s age below 21 but for whatever reason, the officer either miscalculated or incorrectly applied the formula. In these types of situations, it is imperative to take action right away and seek legal help. Our office has helped many people affected by these errors by contacting the legal department of the Department of State and requesting review of the case. And we are happy to say that most errors have been reversed and the children been granted their visas!
If you need help with the CSPA or an officer has incorrectly calculated a child’s age under CSPA, give us a call.