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SIV applicants can apply to bring their children to the United States as “derivatives” on their visas. Children must be under the age of 21 and unmarried. Last week, the State Department changed how it calculates a child’s age in specific situations. Some applicants with children who were not allowed to apply because the State Department decided the children were too old can now contact the State Department to have those children added to their applications. This policy change follows IRAP’s lawsuit on behalf of five families whose children were prevented by the old policy from seeking safety in the United States.
This blog post is provided for informational purposes only and not as legal advice. If you would like legal information about the SIV process in multiple languages, or to request help from IRAP, please use IRAP’s Legal Information website. Legal practitioners can also use IRAP’s SIV legal practice resources.
Who can benefit from the policy change?
Afghan SIV applicants who:
- filed an I-360 petition;
- have not yet been admitted to the United States or adjusted their status to lawful permanent resident based on the Form I-360 (i.e., as a SIV applicant); and
- have a child who:
- was under 21 years old when the applicant filed their Chief of Mission (COM) application, including Form DS-157, and
- turned 21 before the applicant filed Form I-360 (such that the child did not qualify as a derivative under prior FAM guidance).
What does an applicant need to do to benefit?
- Withdraw Form I-360 using the National Visa Center (NVC) Public Inquiry Form, linked here. The applicant should attach a signed written statement requesting that the petition be withdrawn and explaining the reason.
Note: the State Department does not provide guidance specific to Form I-360 withdrawal, but it instructs applicants seeking to withdraw any immigration petition to do so following the above procedure.
Note: If an attorney or accredited representative submits the withdrawal request, they must include a G-28.
What are the details and background of the policy change?
The law creating the Afghan SIV program allows an applicant’s spouse and children to receive a derivative visa or status. The design of the program recognizes the very unfortunate reality that the Taliban continues to detain, torture, and kill not only Afghan employees of the U.S. mission, but also their families.
For years, the U.S. government processed SIV applications in ways that excluded Afghan children in danger from a path to safety. Under U.S. immigration law, children must be unmarried and less than 21 years old in order to be considered a derivative. To make sure children did not “age out” of eligibility for immigration benefits because of government processing delays, Congress passed the Child Status Protection Act (CSPA). The CSPA is complicated and its application differs depending on the kind of visa and other factors. For Afghan SIV applicants, the government determined Afghan children’s SIV eligibility based on their age in the middle of SIV application processing (that is, when the applicant filed the I-360 petition), rather than at the start (when the applicant filed an application for COM approval). As a result, many children who were under 21 when their parents filed their SIV application were told they had aged out of eligibility while they waited for years for the government to complete the first stage of the adjudication process and grant COM approval. This was true even though the CSPA was meant to protect families from just this situation.
The consequences of this policy were extreme. For example, one of IRAP’s clients, who served the U.S. mission and faced death threats as a result, applied for an SIV when his daughter was just 14 years old. Nonetheless, the U.S. government delayed many years in processing his application and ultimately the government told our client that his daughter had aged out of eligibility for SIV protections.
In 2022, the U.S. government fixed this problem – but only for recently-filed SIV applications. Applicants who hadn’t yet advanced to the second stage of the process (the I-360 petition) were no longer required to go through that stage. As a result, for those and new applicants, the government now determines a child’s eligibility at the start of the SIV application process (when the applicant filed a COM application), ensuring that children do not age out because of government processing delays.
But this policy change did not help children of SIV applicants who applied earlier and have been waiting the longest – namely, those who had already filed I-360 petitions after their children had turned 21. The government has continued to tell these applicants that their children are too old to benefit from SIV protections. As a result, when these applicants are approved for SIVs to come to safety in the United States, they are faced with an impossible choice: keep their whole families together in imminent danger in Afghanistan, or to leave their older children behind to protect the rest of the family.
Last week, the government corrected this arbitrary difference in treatment for a subset of SIV applicants. In July 2024, IRAP and the law firm Williams & Connolly LLP filed a lawsuit, M.M.M., et al. v. U.S. Dept. of State (E.D. Va.), challenging the government’s determinations that our clients’ children aged out of SIV eligibility. Our clients applied to the SIV program when their children were as young as 14, 16 and 17, but their children turned 21 while they waited many years for the government to process their applications. The lawsuit remains pending, but at a hearing last Fall, the judge berated the government for its failure to protect Afghan allies’ children as “unconscionable.”
Following the filing of the lawsuit, in recent weeks, the U.S. government changed its policy to allow more Afghan children to remain eligible as derivatives of their parents’ SIV applications. Specifically, the government changed the FAM to allow certain Afghan SIV applicants who have not yet been admitted to the United States or adjusted their status to withdraw their Form I-360. When they do so, the government uses the document they filed at the beginning of their SIV process (Form DS-157) to determine whether their children are eligible for SIV processing. If the children were under 21 when the applicant filed their COM application with Form DS-157, the children remain eligible as SIV derivatives – so long as they are unmarried and otherwise satisfy the program requirements. See 9 FAM 502.1-1(D)(5)(a)(6)(b)&(c).
NOTE: This policy change does not apply to people who have been admitted or granted adjustment of status based on an approved I-360 under the SIV program.
We welcome the U.S. government’s change allowing more Afghan children in danger because of their parent’s service to the United States to benefit from SIV protections. At the same time, through our CSPA lawsuit, we continue to push for protections for all Afghan children who are in danger because of their parent’s service to the United States.
This blog post is provided for informational purposes only and does not constitute attorney-client advice. If you would like legal information about the SIV process in multiple languages, or to request help from IRAP, please use IRAP’s Legal Information website.
This publication is from January 2025 and does not reflect legal changes since publication. Please see IRAP’s Legal Practitioner Resources page for newer resources and additional information for legal practitioners.
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