Is my son eligible for US visa even though he aged out because of the retrogression? 3 Answers as of November 29, 2011

Quite simply yes under the Child Status Protection Act, but I am only assuming. Someone needs to do the proper calculation for you and tell you for sure. My feeling is that you should be fine. If not, then he may be able to keep the same priority date of 1989, which will make him eligible for a visa right away or soon. But you will have to file for him once you become a LPR. Good luck!

First. I'll assume you are from the Philippines based on the priority date you mentioned. The country of birth is quite important because it determines when your visa becomes available. There is way to calculate his age under CSPA. We first start with your son's date of birth (6/25/1990). Then we need to calculate how long the petition was pending. We have the priority date (September 1, 1989) but we do not have the date of the I-130 approval, so it is not possible to know exactly how many days, months, years the I-130 was pending. Most petitions filed around 1989 were approved quickly, sometimes within 2 months of filing. We need to know the exact length of time the case was pending so that we can subtract this exact time from his exact calendar age on the day the visa first became available. Assuming you are from the Philippines, the visa was first available on July 1, 2010. Your son was less than 21 years old at the time. He had to submit the DS-230 within one year of July 1, 2010, which he did. He appears protected under the Child Status Protection Act and appears eligible to follow with you once the visa becomes current. Make sure not to let one year or more pass without communication to / from the NVC otherwise all fees and application will be cancelled.

You should consult with an experienced immigration attorney in order to determine whether your son still qualifies under the Child Status Protection act which allows to freeze the age of a child who would age out for immigration purposes due to lengthy processing. It requires a calculation of a number of time frames and exact information about the case history.