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Age Out Law

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  • #16
    Thanks for the link your provided. However, after reading the lawyer's response, I realize that there might be some mistake:

    "Question 3: My sister received her permanent resident visa in Jan 2001 ( I had applied for her and her spouse and children in 1988). Her children could not accompany her because they aged out. One turned 21 in 1999 April, second in 1996 Sept. Both are not married yet. She filed petitions for them as relative form I130 in April 2001, within one year from her obtaining her perm. resident visa. We need to know if these children now qualify to receive perm. resi. visa under the CSPA. Please let us know. What procedure they will have to follow? Thanks for your advice.

    Carl: Again, the Act is not generally retroactive. If her children had aged out in January of 2000, when your sister became a permanent resident, it is not likely that they will be able to obtain benefits under the Act. However, if your visa petition was pending many years with the INS before it was approved, there is always a chance that your nieces and nephews might have immigration ages of under 21 under the formula.

    That is not the end of the analysis. The final section of the law provides that the law is effective for derivative beneficiaries only if:

    1) A visa petition was approved before the passage of the law, but only if a final determination has not been made on the beneficiary's application for an immigrant visa or for adjustment of status.

    2) A visa petition was pending on or after the date the law was enacted;

    3) An application for a green card based on the visa petition was pending on or after the date that the law was enacted."


    Here he says that there is a possibility that they can still get the visa if, after calculating the age, their ages are below 21. However, the law is made clear that it's not retroactive. So if the parents have already got the visa, I am pretty confident that the children will not be able to get it, no matter how the final ages turn out to be (#1 from the above).

    I am not saying that my opinion is absolutely correct. My point is, look around and try to see if the interpretations make sense. Don't trust what anybody says 100% and don't give up your hopes, until the final guidance is posted.


    • #17
      Lawyers interpretation is different from one another I think INS should implement guidelines ASAP so that people like myself will not mislead and leftout.


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