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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

The ABC's Of Immigration - New Child Age Out Legislation
by Gregory Siskind and Amy Ballentine

Editor's Note: This article was written on July 26, 2002, President Bush has now signed the legislation discussed in this article into law. - August 9, 2002.

The US House of Representatives passed unanimously the Child Status Protection Act and President Bush is expected to sign the bill in the next few days. The bill addresses the problem of "aging out" where children lose their immigration benefits because they turn 21 before they complete the processing of their green cards. H.R. 1209 was co-sponsored by Immigration Subcommittee Chairman George Gekas (R-PA) and ranking minority member Sheila Jackson-Lee (D-TX). The fact that the top ranking Republican and Democrat on the committee sponsored the bill significantly boosted chances of passage particularly since Congressman Gekas is normally viewed as being very strict on immigration.

The House passed a similar measure last year. When the measure was taken up in the Senate, several provisions expanding the bill were added and it was this revised version that passed the House this week. The bill will have a profound impact on the cases of thousands of people every year. There are a number of important changes provided for in the legislation.

  • Immediate relatives and family preference cases where a visa is immediately available - Under the current law, when a US citizen parent sponsors a child under the age of 21 for a green card, the child is considered an immediate relative and can process a green card application without being subject to a backlog relating to a quota. However, once the child turns 21, they automatically convert to the family first preference category as an adult child of a US citizen. That category is currently backlogged several years because it is subject to a quota under the Immigration and Nationality Act. There are also changes for children of permanent residents. These children are classified under the 2A preference category. When a child turns 21, the cases have automatically converted to the 2B preference category for adult children of permanent residents. 2A cases are normally backlogged much less than 2B cases. The new law states that the age on the I-130 petition filing date controls a person's classification and not their age when the case is adjudicated. So one who is a child of a citizen or permanent resident under the age of 21 when an application is filed will be considered as a child under 21 throughout the case.
  • Family preference cases where a number is not immediately available - In the case where a parent applies for a child under the age of 21 in the 2A preference category and the child turns 21 before his or her priority date becomes current, the age of the child on the date the visa number becomes available minus the amount of time the I-130 was pending will control and not the date the case is adjudicated. But to take advantage of this, the child actually must seek to acquire the green card within a year of the visa becoming available.
  • Children of persons applying for employment-based and lottery-based green cards - For children of employment-based green card applicants and lottery-based applicants, the age of the child minus the adjudication time of the employment-based immigrant petition at the time a visa number becomes available for the parent is the age used for determining whether the child is eligible for the green card as an under 21 year old child. But to take advantage of this, the child actually must seek to acquire the green card within a year of the visa becoming available.
  • Retention of priority date - In the case of a child who turns 21 while a family-based, employment-based, or lottery-based green card application is pending who is not eligible to claim to be under 21 for purposes of seeking a green card, the child may still retain the original date issued upon receipt of the original petition and it is not necessary to file a new application because the case will automatically convert to the appropriate category.
  • Asylum and refugee cases - An unmarried child who seeks to accompany or follow to join a parent granted asylum or refugee status and who was under 21 on the date the parent applied for asylum shall continue to be classified as a minor child even if the child turns 21 after the application was filed but while it was pending.
The law does note that in the case of a child who has been petitioned by a green card holding parent under the 2A category, if the parent later naturalizes, the date of the parent's naturalization controls and the child would not be able to take advantage of this law. Also, in the case of a person who files as a married child of a US citizen in the Family 3rd preference category and later divorces, when the case converts to a case as the unmarried child of a US citizen, the determination of the age of the child for purposes of determining whether eligible as an immediate relative or a first preference case or as a 2A case is made on the date of the actual termination of the marriage and not the date the original application was filed.

There is also finally a fix of a rather absurd problem that has affected Filipino cases for years. Congressman James Sensenbrenner aptly described the problem and the new solution to the US House of Representatives:

"When a permanent resident naturalizes who has sponsored adult sons and daughters for preferential visas, they move from the second preference B category to the first preference category. Normally, the wait for a first preference visa is much shorter than the wait for second preference B visa. However, currently this is not the case for sons and daughters of immigrants from the Philippines. For complicated factors, the line actually gets longer for sons and daughters when the parent naturalizes. Immigrants are in effect being penalized for becoming citizens, and we don't want that. The Senate amendment provides a simple fix by allowing an adult son or daughter to decline to be transferred from the second preference B category to the first preference category when a parent naturalizes."

To request to opt out of the automatic conversion, the child must furnish the INS with a written statement that he or she elects not to have such a conversion occur or to have the conversion revoked if it has already happened.

The new law will become effective as soon as the President signs the bill. President Bush is not expected to oppose the measure so this should be within the next few days at the latest. The law will apply to all new cases as well as all cases filed before the date the President signs the bill as long as a final determination on an adjustment of status or immigrant visa application has not been made. This could mean that many people who never applied will have the opportunity as long as they meet the one year test described above.


About The Authors

Gregory Siskind is a partner in Siskind, Susser, Haas & Devine's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at gsiskind@visalaw.com.

Amy Ballentine is an associate in Siskind, Susser & Haas's Memphis, Tennessee office. She graduated Cum Laude with a Bachelor of Arts degree in English Literature from Rhodes College in 1994. While in law school at the University of Memphis she was a member of the law review staff as well as a published author. She also worked with the local public defenderís office in death penalty cases. In May 1999, she graduated Cum Laude from the University of Memphis Law School. She is a member of the American Immigration Lawyers Association. She can be reached by email at aballentine@visalaw.com


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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