Everyone loves a birthday – right – well sometimes a child turning 21 can present a problem if the parents are waiting for a DV interview. However, turning 21 does not always mean the child cannot get a visa, and I will explain why. This is a slightly complex explanation, but it needs to be…
DV lottery child about to turn 21
For immigration purposes the child is considered to have become an adult at age 21. For DV lottery purposes, that meant that once a child turned 21 before the interview they were no longer able to get a Green Card. However, in 2002 the US government introduced a law called the Child Status Protection Act (CSPA). The intent of the new law was to provide some help to families that are waiting for their case to be processed and freezes a child’s age in certain circumstances. It is a mathematical formula but for DV lottery purposes the effect is to add some time beyond the 21st birthday by which time the case should be current. How much time – well the formula is based on the entry and announcement dates. So first of all let us calculate the difference between those dates.
My understanding (based on information from Jesse Bless) is that as long as the case with the child becomes current before the age out month (21 years PLUS the year appropriate CSPA protection) the child’s age remains “frozen” even if the interview is held later (although it is important to file the DS260 prior to that date).
The extra time is the period of time between the first day that entry begins and the day that winners are announced
For DV2024 the dates are October 5, 2022 and May 7, 2023 – a gap of 214 days.
Ok so now we know the CSPA “extra time” – how do we apply that. The rules say the child’s age will be frozen for that extra time and the case must become current within that new time. The date of interview within the current month is not important – the issue is when the case becomes current. Let us take an example.
A child is named as a derivative on a family case for DV2015. The child turned 21 on June 10, 2014. The child will “age out” on January 8, 2015 (June 10 plus 212 days), so the case must become current on January 2015 or before. The actual interview could be scheduled for a date after January 8 2015 as long as the case was current in time.
For a DV2016 example let us say the child will turn 21 on February 28, 2015. Adding 216 days to that birthday means the child ages out on October 1, 2015. That means the case could be OK if the case number is low enough to be current in October. That would be a nervous wait to see the September visa bulletin!!!!
For a DV2016 example let us say the child will turn 21 on August 15, 2019. Adding 216 days to that birthday means the child ages out on March 18, 2020. That means the case could be OK if the case number is low enough to be current in March of 2020.
There is a nice simple date calculator here. This will help you figure out when your child will age out.
NOW THEN a word of warning. You MUST list every child on your EDV entry that is under 21 at that time regardless of whether they will age out or not. Not listing a child under 21 is certain to cause disqualification.
However, if your child has aged out or is not able to receive derivative benefit at this time, all hope is not lost….they can be petitioned for at a later time-under the Family Sponsored Category etc. Keep in mind, that the process is longer however, so the family might be separated for some time.
There is now a good description by USCIS here.
Just a two words of warning.
The CEAC system will drop the child turning 21 from the system automatically. That doesn’t matter, and it does not affect the processing in any way.
The COs/embassies have been known to not understand the CSPA rules as they should be applied to DV. They may even think that CSPA benefits don’t apply to DV cases. Therefore it is important to advise the embassy that you are bringing the child who passed 21 (as long as you have calculated they are covered by the CSPA), and if I were you I would print out the guidance from the government linked above.