Many foreign nationals have brought their families to the United States in pursuit of career advancement or employment opportunities. They generally acquire a temporary nonimmigrant visa (such as F-1, J-1, L-1, or H-1B) in the United States while their spouse and/or children have a derivative visa status (such as F-2, J-2, L-2, or H-4). However, not all foreign nationals are aware of the fact that, by the time their children reach the age of 21, the children will lose their derivative visa status and will need independent (non-derivative) visas for themselves.
Before COVID, aging out did not seem to be a serious issue because it was easy to cross the border and apply for a new temporary nonimmigrant visa.
During the COVID, however, with the quarantine restrictions and restrictive policies in the U.S. Consulates abroad, many foreigners chose to stay and renew their visas within the United States.
In addition, when entering at the port of entry, the Customs Border Patrol (CBP) may not issue the I-94 with the expiration date as of the child’s 21st date of birth. This leads to a considerable amount of confusion because foreigners often rely on the I-94 or the visa stamp on the passport to determine the expiration date of their status. Therefore, many foreign nationals do not change their children’s status before they turn age 21, and these children will fall out of status.
Since there are a lot of delays at the US consulates and US embassies, changing status within the United States with USCIS can be more ideal. However, a Change of Status takes time to process and can require extra steps if the principal visa holder (parent) is a J-1 subject to Sec. 212(e) with two year home residency requirement. While a J1 waiver may not be required for a J-2 to obtain another nonimmigrant visa stamp (F-1 or B-2) in the U.S. Consulate office, it can be required when filing an I-539 Change of Status application within the United States with USCIS.
If you are currently in the United States working with a nonimmigrant visa and have a child close to age 21 in a derivative status of your temporary visa, please talk to an experienced immigration law attorney to assess the situation and find the appropriate action to take to secure your child’s status within the U.S.
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The post Fear of Turning 21: “Aging Out” Your Derivative Visa Status appeared first on Fickey Martinez Law Firm.
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