What Does the Immigrant Visa Application Process Involve?
The immigrant visa application process is a 2 stage process:
- A US citizen or Green Card holder files an Immigrant Visa Petition for the benefit of a foreign national family member; and
- The foreign national family member files an application for an Immigrant Visa.
Who May File an Immigrant Visa Petition?
A U.S. Citizen can file an Immigrant Visa Petition for:
- Spouse
- Son or daughter
- Parent
- Brother or sister
A U.S. Lawful Permanent Resident (a Green Card holder) can file an Immigrant Visa Petition for:
- Spouse
- Unmarried son or daughter
Once the Immigrant Visa Petition Has Been Approved, How Long Will It Take For My Foreign National Family Member to Apply for an Immigrant Visa?
It depends upon the visa category in question.
The number of Immediate Relative Immigrant Visas available annually (for the spouses, unmarried children under the age of 21 and parents of US citizens) is not subject to an annual cap. As such, the beneficiaries of approved Immediate Relative Immigrant Visa Petitions may immediately proceed to file an application for an Immigrant Visa.
However, the number of Immigrant Visas available under the Family Preference Immigrant Visa Categories (for example, for the brothers and sisters of US citizens) are subject to annual numerical caps. The beneficiaries of approved Family Preference Immigrant Petitions must therefore wait until a visa becomes available before filing an application for an Immigrant Visa. In some cases, it may take several years for a visa to become available.
Immigrant Petitions are assigned a “priority date” upon receipt. For the Family Preference Visa Categories, the priority date provides an indication as to how long it is likely to be, before an Immigrant Visa becomes available. When an Immigrant Visa becomes available, the priority date is said to be “current”. In August 2017, the USCIS were processing the Immigrant Visa applications of British siblings of US citizens, with a priority date of May 8, 2004.
What Is “Ageing Out”?
When a US citizen files an Immigrant Visa Petition for the benefit of a foreign national family member (for example, a British sibling), the beneficiary of the petition has the opportunity to apply for derivative dependent visas on behalf of their spouse and any unmarried children under the age of 21, to enable their family to accompany them to the US.
The term “ageing out” refers to a situation where a child who was an unmarried child under the age of 21 at the time the petition was filed no longer meets that criteria by the time the petition priority date becomes current (i.e. an Immigrant Visa becomes available), due to the passage of time.
What, If Anything, Can Be Done When a Child Ages Out?
In summary, there are 3 potential options available to children who have “aged out”:
- The Child Status Protection Act (“CSPA”) formula may be applied, where a child is no longer under the age of 21 by the date an Immigrant Visa becomes available.
The CSPA formula is: [Age of child when the petition priority date becomes current] – [The number of years the Immigrant Visa Petition was pending] = age for purposes of considering if the child is still a “child” within the meaning of the Act and can therefore emigrate. In some cases, application of the formula will “cure” the ageing out and render the child eligible for an Immigrant Visa.
- In some cases, the child’s petition may be seamlessly transferred into another Immigrant Visa category.
- The child may be eligible for an alternative Immigrant or Non-Immigrant Visa, which may enable them to join their family in the US.
If you wish to apply for an Immigrant Visa or are concerned that one of your children may be affected by “ageing out”, we would advise you to seek legal advice from a licensed U.S Immigration Attorney, who will be able to explore your unique circumstances at length, identify any options available and advise on prospects of success.
Davies Legal Immigration
At Davies Legal Immigration, we represent clients in connection with all areas of family, business and employment based immigration. We offer a diligent, fully-flexible service at a competitive fixed fee and offer innovative immigration solutions. Call now for a complimentary telephone call with a licensed US Immigration Attorney and take the first steps towards achieving your own American Dream.
