Over 21 years of age can you emigrate as a child?

In this week's Consulta Migratoria® column, I answer the question of a reader who wants to know if he will be able to immigrate through a family petition filed in 1997 by an aunt.

Each case is different and the answers vary depending on the immigration history of each person. Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before beginning any process.

This is the column:

In September 1997 when I was 9 years old, my aunt, who is a U.S. citizen, petitioned my father, a Mexican citizen. Within the application my mother, siblings and I are listed. Currently, I am 26 years old and single. I want to know if I will be able to immigrate with my family to the United States through the application that my aunt filed 17 years ago. - Aaron P.

Aaron, you may be able to immigrate with your family under the protection of the Child Status Protection Act (CSPA), if you qualify.

When a U.S. citizen petitions for a sibling, the spouse and children of the person being petitioned may also be able to obtain an immigrant visa derivatively.

The U.S. Citizenship and Immigration Services (USCIS) assigns category F4 to the family petition filed by U.S. citizens on behalf of a sibling.

U.S. immigration law defines a "child" as an unmarried person under the age of 21. Generally, in order for a child to qualify as a beneficiary of an immigrant visa, the petition must be filed before the child reaches 21 years of age. However, the CSPA allows certain beneficiaries to still qualify as children for an immigrant visa, even if they are over the age of 21.

The CSPA can also preserve "child" status in family and employment petitions and the applications of refugees, asylees, and battered immigrants under the protection of the Violence Against Women Act (VAWA).

To qualify, the CSPA requires that the child:

Must be the beneficiary of a visa petition that is pending or approved as of August 6, 2002.

Must not have had a final decision on an application for adjustment of status or an immigrant visa prior to August 6, 2002.

Must have attempted to acquire permanent residence within one year of a visa becoming available. USCIS interprets the intent to acquire residency as doing one of the following: filing on behalf of the child a Form I-824, Application for Action on an Approved Application or Petition; filing a Form I-485, Application to Register Permanent Residence or Adjust Status; or filing the U.S. Department of State Form DS-260, Immigrant Visa and Alien Registration Online Application.

Aaron, there is currently no immigrant visa available to you. According to the U.S. Department of State Visa Bulletin As of September 2014, the Federal Government is processing family petitions under the F4 category that were filed prior to January 22, 1997.

While waiting for an immigrant visa, you should consult with an immigration attorney as soon as possible to determine if you meet all the requirements to immigrate to the U.S., including having CSPA protection and being admissible to the country.

When you visit the attorney, you should bring a copy of the family petition your aunt filed on your father's behalf and any correspondence they received from USCIS or the U.S. Department of State, including the family petition approval letter. In addition, you should know your aunt's annual income as reported on her most recent tax return.

For more information and immigration tips, read my blog inmigracionhoy.com.

Send your questions to preguntas@consultamigratoria.com. Include detailed information about your situation to better answer your questions.

Nelson A. Castillo, Esq. is an immigration attorney and author of La Tarjeta Verde: Cómo Obtener la Residencia Permanente en los Estados Unidos (Green Card: How to Obtain Permanent Residence in the United States). He is a past President of the Hispanic National Bar Association and current President of the Los Angeles Westlake South Neighborhood Council. To contact Mr. Castillo's office, please call (213) 537-VISA (8472).