The INS has commented on its policy in the case where a minor child of a permanent resident files for adjustment of status to permanent residency after his or her priority date becomes current, but the child turns 21 before the application is finished. The cutoff date for adult children of permanent residents is much later than for minor children. If the application had to be refiled, the delay in refiling due to the new cut off date would be approximately two years. INS headquarters addressed the question in a recent memorandum to all INS office directors. According to the INS, it is enough that an immigrant visa be available to an applicant at “the time his application is filed.”
The INS stated in the memorandum that “It is Service policy that as long as the adjustment applicant remains eligible to receive an immigrant visa in the same basic visa classification under which he or she applied, the temporary unavailability of an immigrant visa does not invalidate the application, which will be held “in abeyance” until such time the visa priority date is reached again.” Since immigrant visas for minor and adult children of permanent residents are allocated from the same pool (the Family 2A and 2B categories), reassignment from one category to the other does not destroy the applicant’s eligibility for permanent resident status. Unless a case presents valid additional grounds for denial, INS offices are instructed simply to hold the application without making a decision on it.
The INS distinguished the above scenario from that of a child accompanying or following to join a principal visa beneficiary (such as a parent being sponsored by a new permanent resident spouse). The child in this case would lose entitlement to immigration by virtue of reaching the age of 21 unless the child becomes the direct beneficiary of a new visa petition filed on his or her behalf by the original petitioner.
The INS has directed INS offices to approve motions to reopen and reinstate in cases where the applications were mistakenly denied.
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