On August 6, 2002, President Bush signed the " Child Status Protection
Act" into law. The law addresses the problem of minor children losing
their eligibility for certain immigration benefits as a result of INS
processing delays.
Prior to this new law, in order for an individual to immigrate as a "child"
under the immigration laws, the child's application for adjustment of
status must be approved before the his/her 21st birthday if the alien
is physically in the U.S. If the child is outside the U.S., he/she must
be under 21 years of age at the time the child enters the U.S with an
approved immigrant visa. Because of enormous backlogs and processing delays,
however, many children turned 21 before the INS adjudicated the immigrant
visa petition or adjustment of status application.
In such cases, the child "aged-out" and was ineligible to receive
an immediate relative visa or was no longer considered to be a derivative
"child" on his or her parent's application. The child's petition
was either automatically moved to a lower preference category or the child
was required to submit his or her own petition, resulting in years of
delays and possible ineligibility.
Under the "Child Status Protection Act", the determination
of whether an unmarried alien son or daughter of a U.S. citizen is considered
an "immediate relative child" (under 21 years of age) will now
be based on the age of the alien at the time the Petition for Alien Relative
(Form I-130) is filed on his or her behalf, rather than on the date the
adjustment of status is approved. The legislation also provides relief
in several other types of situations where aging-out has traditionally
been a problem.
The law will apply to applications for permanent residence based on family-based,
employment-based, and diversity lottery categories.
Rules for Determining Certain Aliens are Immediate Relatives
A. New § 201(f)(1) provides that the determination of whether an
alien is considered to be an "immediate relative child" (less
than 21 years of age) will be made as of the date on which the Form I-130,
Petition for Alien Relative, is filed.
Example 1
A father is a U.S. citizen and petitions for his 20-year-old son. Formerly,
the son had to obtain permanent residence prior to his 21st birthday.
If he aged-out, his petition would automatically convert to the family-based
1st preference category (unmarried adult sons and daughters of U.S. citizens).
Under the new law, the child's age is fixed at 20 on the day that the
form I-130 visa petition is submitted on his behalf. Though he will be
over 21 years of age when he obtains permanent residence, he is treated
as a 20-year-old for immigration purposes.
B. Section 201(f)(2) deals with family-based second preference petitions
filed by permanent residents who subsequently become U.S. citizens through
naturalization. In such cases, the new law provides that if the second
preference petition on behalf of the alien child is converted to an immediate
relative petition based upon the parent's naturalization, that is, the
child is unmarried and under 21 years of age at the time of the parent's
naturalization, the child's eligibility for immediate relative status
will be determined based upon the date of his or her parent's naturalization.
Example 2
A mother who is a LPR petitions for her 18-year-old daughter under the
family-based 2A category (spouses and children of permanent residents).
The next year, the mother applies for naturalization. By the time she
becomes a U.S. citizen, her daughter is one day away from turning 21.
There is no time for the daughter to complete the necessary application
for permanent residence. Under the old law, the daughter would be placed
under the family-based first preference category. However, under the new
law, her age will be fixed as of the date that her mother naturalized.
Since she was 20 at that time, she qualifies as an "immediate relative".
C. Section 201(f)(3) covers situations in which U.S. citizen parents
file petitions for married sons or daughters and such sons or daughters
later divorce. In such cases, if the original third preference petition
(married son or daughter of U.S. citizen) is later converted to an immediate
relative petition on the basis of the son or daughter's divorce, the child's
eligibility for immediate relative status will be determined based upon
his or her age on the date of the divorce.
Example 3
A 19-year-old married son is petitioned by his U.S. citizen mother under
the family-based 3rd preference category (married sons and daughters of
U.S. citizens). A year later, the son and his wife obtain a divorce. The
petition on his behalf automatically is converted to the immediate relative
category. However, he does not apply for immigrant visa until he is 22.
Under the new law, his age is fixed as of the date of the termination
of the marriage. He can still apply as an immediate relative.
Rules for Determining Whether Certain Aliens are Children other than Immediate
Relative
Under the new law, whether certain aliens are children will be determined
based on the age of the alien child on the date on which an immigrant
visa number becomes available, reduced by the number of days the immigrant
petition was pending, but only if the individual seeks to obtain permanent
resident status within one year of such availability. Here are two examples
of how the new law determines the age of the alien child under the family-based
immigration petition categories.
Example 4
A father who is a lawful permanent resident has a 19-year-old daughter,
he submits an family-based immigration petition (I-130) on behalf of the
daughter, the petition is pending for 10 months before the approval, then
the daughter becomes 21 years and six months when the visa number is available.
Under the old law, the daughter has aged out. However, under the new law,
his age is fixed as of the date that a visa number becomes available "reduced
by" the number of days that the I-130 petition was pending. Since
the petition was pending for ten months, these tent months must be subtracted
from the child's age when a visa number became available (21 years and
six months). Therefore, the daughter's age is frozen at 20 years and eight
months. This means that she is still considered a "child". The
new law provides that she must apply for permanent residence within one
year of a visa number becoming available in order to take advantage of
this provision of the law.
Example 5
An adult (more than 21 years of age) U.S. citizen has an alien brother;
the brother has one son who is 18 years old. The citizen submits an immigration
application (I-130) one behalf of the brother (principle beneficiary)
and the brother's son (derivative beneficiary) under the fourth preference.
The petition is approved 20 months later, and then the son becomes 22
years and 6 months old when the visa number is available.
Under the old law, the son has aged out. However, under the new law, since
the petition was pending for 20 months, these 20 months must be subtracted
from the child's age when a visa number became available (22 years and
6 months). Therefore, the son's age is frozen at 20 years and ten months.
This means that he is still considered a "child". He also must
apply for permanent residence within one year of a visa number becoming
available in order to take advantage of this provision of the law.
Section 3 also provides that if the alien is determined to be 21 years
of age or older at the time the visa number becomes available, his or
her petition will automatically be converted to the appropriate category
(typically the 2B son or daughter of permanent resident category), and
the alien will retain the priority date associated with the original petition.
In the above situations, If the calculation had resulted in the individual's
age being fixed at 21 or older, the new law provides that he or she would
be automatically assigned to an appropriate category, presumably family-based
2B, and that he/she retain the original priority date. This would be the
date that the sponsor submitted the I-130 immigrant application.
As we discussed above, rules for determining whether certain aliens are
children also apply to employment-based immigration applications. Under
the new law, the eligibility of these aging-out children will be determined
by their age at the date a visa becomes available to them minus the number
of days that the Employment-Based immigration petition was pending. Furthermore,
these children also 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 6
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 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. The visa
number for EB-2 was available for John on July 1, 2002. Under the old
law without the Child Status Protection Act, Junior has 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
residence. However, Junior has to file his I-485 within one year from
the date of I-140 approval, before July 1, 2003. The length of time that
is takes the INS to adjudicate Junior's case is no longer important in
these cases.
According to "Child Status Protection Act", if through the above
calculation, the child's age is fixed at 21 or older, the child would
be automatically reclassified to an appropriate category and retains the
principal beneficiary's original priority date. Please see the next example
below.
Example 7
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, 2001, which is the date John's
employer filed John's Labor Certification application.
Example 8
Richard filed his I-140 immigration petition (NIW) on August 1, 2002.
Richard's son, Simon, is 21 years and one month old. According to the
new I-140 and I-485 Concurrent Filing Rule, Richard filed his I-485 because
the visa number was currently available for Richard at that time. However,
Simon cannot file his I-485 with his father because he aged out.
Example 9
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 since the visa number was 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.
Visa numbers are currently available to all EB-1, EB-2, and EB-3 categories.
Thus, 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, since the Concurrent Filing rule became
effective, visa numbers may become unavailable in the future because more
eligible aliens will be filing their I-485. Thus, eligible aliens with
aging-out children should file their I-485 as soon as possible. Please
see next example.
Example 10
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 number for EB-2 has been exhausted.
However, the visa number 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 11
Jason filed his I-140 immigration petition (NIW) on June 30, 2002. Jason
has a son, Ken, who is 20 years and ten months old at that time. According
to the visa bulletin, an immigration visa number became available for
Jason on July 31, 2002. Ken was 20 years and eleven month on July 31,
and he is not in the U.S. but in his home country. Because of the new
I-140 and I-485 Concurrent Filing Rule Jason filed his I-485 on August
10, 2002. If Jason's I-140 is pending for 6 months until December 31,
2002, one month pending period from June 30 to July 31, 2002 should be
subtracted from Ken's age 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 from
July 31, 2002.
For
other information about Age Out, please click on one of the following
topics below:
What is "Age Out"?
New Law On Age-Out
Expedited Processing of Age-Out Cases
Leeway of Age-Out
How much is the attorney fee
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