The "Child Status Protection Act", effective August 6, 2002, addresses the problems of minor children losing their eligibility for certain immigration benefits as a result of INS (now USCIS) processing delays. Prior to the passage of this law, a child's eligibility in Employment-Based Immigration situations to be part of his or her parent's application as a derivative beneficiary was based on the child's age at the time that the child's I-485 was adjudicated. Because of enormous backlogs and processing delays, many underage children turned 21 before their I-485 applications were adjudicated. In such cases, the children "age-out" and are no longer considered to be part of the parent's application, and lose their eligibility to obtain Green Cards as a derivative beneficiary.
Children who otherwise would have aged out may successfully adjust their status through the new Concurrent Filing Rule and the "Child Status Protection Act." According to the "Child Status Protection Act," the eligibility of children applicants will be determined by their age at the date a visa number becomes available to them, minus the number of days that the Employment-Based immigration petition was pending. Furthermore, these children must file for permanent resident status within one year of such availability. For a clearer illustration of this rule, please see the different scenarios below.
Example 1
The Labor Certification application that was submitted on John's behalf on January 1, 2000 was later approved on December 31, 2000. Afterwards, his employer submits an I-140 (EB-2) immigration petition on John's behalf on January 1, 2002. At that time, John's son, Junior, is 20 years and 7 months old. John's I-140 petition was pending for six months and was approved on July 1, 2002, one month after Junior turns 21 years of age. Visa numbers for EB-2 were available for John on July 1, 2002. Under the old law without the Child Status Protection Act, Junior would be considered “aged out” because he is now 21 years old. However, under the new law, his age is fixed as of the date that a visa number becomes available, minus the number of days that the I-140 was pending. Because John's I-140 was pending for six months, these six months must be subtracted from Junior's age at the time the visa number became available on July 1, 2002. Subtracting six months from Junior's age of 21 years and one month on July 1, 2002, Junior's age is fixed at 20 years and 7 months. Thus, even though he was already 21 years and one month on July 1, 2002, he is still considered a "child" for purposes of accompanying his parents in adjusting his status to permanent resident. However, Junior has to file his I-485 within one year from the date of John’s I-140 approval - that is before July 1, 2003. The length of time that is takes the USCIS to adjudicate Junior's case is no longer important thanks to the CSPA..
According to "Child Status Protection Act", if through the above calculation the child's age is fixed at 21 or older, the child will automatically be reclassified to an appropriate category and retain the principal beneficiary's original priority date. Please see the next example below.
Example 2
Same facts as above, except that Junior is 21 years and seven months old at the time of John's I-140 approval. Because John's I-140 was pending for six months, Junior's age will be fixed at 21 years and one month. Even with the Child Status Protection Act, Junior still ages out and may not adjust his status at this time. However, he will automatically be reclassified to an appropriate category, (family-based 2B), and retain his father's original priority date, January 1, 2000, which is the date John's employer filed John's Labor Certification application.
Example 3
Richard filed his I-140 immigration petition (NIW) and his I-485 concurrently on August 1, 2002, under the Concurrent Filing Rule. Richard's son, Simon, is 21 years and one month old at the time of filing. Simon cannot file his I-485 with his father because he is aged out.
Example 4
Howard's daughter, Rachel, is 20 years and 10 months old. Howard filed his I-140 immigration petition (NIW) on August 1, 2002. According to the new I-140 and I-485 Concurrent Filing Rule, Howard and Rachel filed their I-485 concurrently with the I-140 petition since visa numbers were available for Howard at that time. Thus, according to the "Child Status Protection Act," no matter how much time Howard's I-140 is pending, Rachel will not age out.
With the new Concurrent Filing rule, any person who is a beneficiary (or applicant) of an I-140 petition that has already been filed or is filing the I-140 at this time is now eligible to file the I-485 application as well. Family members will be eligible to file the I-485 along with the principal alien. However, this can only be done if visa numbers are available at the time of filing
Example 5
Jenny filed her I-140 immigration petition (NIW) on August 10, 2002. Jenny has a son, Benny, who is 20 years and eleven months old. However, due to the new I-140 and I-485 Concurrent Filing Rule, many aliens have filed their I-140 and I-485 together and the visa numbers for EB-2 have been exhausted. Moreover, the visa numbers will not be current until December 2002 when Benny will be 21 years and three months old. If Jenny's I-140 is pending for six months and will be approved in February 2003, these six months will be reduced from Benny's age in December 2002 when he is 21 years and three months old. Thus, his age is fixed as 20 years nine months. However, if Jenny's I-140 petition is pending for only two months and will be approved in October 2002, Benny's age will be fixed as 21 years and one month. Thus, Benny ages out in this scenario and must wait until his priority date under family-based 2B immigration becomes current.
Example 6
Jason filed his I-140 immigration petition (NIW) on June 30, 2002. Jason has a son, Ken, who was 20 years and ten months old at the time. According to the visa bulletin, immigration visa numbers become available for Jason on July 31, 2002. Ken will be 20 years and eleven months on July 31, and he is not in the U.S. but in his home country. Under the new I-140 and I-485 Concurrent Filing Rule, Jason files his I-485 on August 10, 2002. If Jason's I-140 is pending for 6 months (until December 31, 2002), the one month pending period from June 30 to July 31, 2002 should be subtracted from Ken's age taken on July 31, 2002. Thus, Ken's age is fixed as 20 years and 10 months. Ken may apply for his immigrant visa through Consular Processing at U.S. Consulate in his home country within one year of July 31, 2002.
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