Visa Processing for the Children of Abused Spouses

Julie Elizabeth Kruger

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Immigration Attorney

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Posted over 4 years ago. 1 helpful vote

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Frequently Asked Question: I have an approved VAWA self-petition, on which I listed my child living abroad. My child has since turned 21, but is still unmarried. Can I initiate visa processing for my child? Is my child protected by the Child Status Protection Act?

Answer: An alien who marries a United States citizen in good faith, but unfortunately, during the marriage, is battered or is the subject of extreme cruelty perpetrated by the alien's spouse, can file an application to be classified as an "immediate relative." The benefit of being classified as an immediate relative is that there are no annual numerical limitations on the number of immediate relatives that can be granted immigrant visas to the United States.

An abused spouse's application to be classified as an immediate relative may include any "child" of the alien. A "child" under U.S. immigration law means an unmarried person under 21 years of age.

Sometimes, although an abused spouse included his or her child on the application, the child will turn 21 before visa processing can be initiated. This is called "aging out." If a child ages-out, then the child is no longer eligible for an immigrant visa as an immediate relative, because the child is no longer considered a "child" under U.S. immigration law.

Recognizing the injustices that could result from such "aging-out," Congress passed the Child Status Protection Act in 2002. Under the Child Status Protection Act, the age of an alien is frozen on the date on which the petition is filed to classify the alien as an immediate relative. This applies to children who are listed as derivatives on their parent's VAWA self-petition filed prior to their 21st birthday, who remain unmarried.

This means that an alien who is an abused spouse of a United States citizen, who properly files a VAWA self-petition prior to his or her child reaching age 21, and who includes his or her child in the petition, can initiate following to join visa processing for the child. The child will benefit from the Child Status Protection Act. The child's age will be frozen on the date the self-petition was filed, and will remain a child for immigration purposes, provided he or she remains unmarried.

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