An Analysis Of The Child Status Protection Act
Cyrus D. Mehta
The plight of children who turn 21 before the INS has adjudicated the requisite petition or application is well known to immigration practitioners. This normally happens due to INS processing delays, and also as a result of consular delays, if the child is overseas.
Minor children may be sponsored for permanent residency directly by their parents, who are either citizens or lawful permanent residents, or are included as derivatives in their parents’ applications for lawful permanent residence. If they turn 21 before obtaining permanent residency, they can get completely left out or have to move to other preference categories where the visa availability date is unlikely to become current for a very long time.
On August 6, 2002, President Bush signed legislation called “The Child Status Protection Act” (Pub. L. No. 107-208) (“CSPA”) to address the problem of minor children losing their eligibility for certain immigration benefits as a result of INS or consular delays.
The CSPA protects the immediate relative child of a US citizen parent, children of permanent residents as well as children of asylum and refugee applicants. Prior to the enactment of CSPA, the child’s age was determined at the time of adjudicating the grant of permanent residence. The CSPA introduces earlier points of time when the child’s age is determined, after which it does not matter if the child crosses 21. The provisions will be summarized below.
Age-out Protection for Children of US Citizens
Section 2 of the CSPA extends benefits to children of US citizens in the immediate relative category (minor children of US citizens) under three specific situations:
1.The child’s age will be determined on the date on which the Form I-130, Petition for Alien Relative is filed, as opposed to when the application is adjudicated for permanent residence.
2.In the case of a child sponsored under the family-based second preference (2A) (minor children of permanent residents), which subsequently is converted to an immediate relative petition based upon 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.
3.If the US citizen parent filed a petition for a married son or daughter (under the third preference for married sons and daughters of US citizens) and such son or daughter later divorces, resulting in the original third preference petition later being converted to an immediate relative petition, the child’s eligibility for immediate relative status will be determined based upon his or her age on the date of the divorce. This provision would only be applicable in the case of a married son or daughter who divorces before the age of 21.
Age-out Protection for Children of Permanent Residents
Section 3 of the CSPA extends “age-out” protection to the children of lawful permanent residents. This includes children who have been directly sponsored by their parents or who are accompanying or following to join family-sponsored, employment-based, and diversity immigrants.
The age of the alien child is determined on the date on which an immigrant visa number becomes available, reduced by the number of days the petition was “pending.” This provision triggers only if the alien child has sought to acquire permanent residence within one year of such availability.
For example, if the alien child is 21 years and 6 months old on the date the visa number becomes available, but the I-130 petition was pending for 8 months, the alien child’s age is reduced by 8 months, and thus the child would be considered to be under the age of 21 years at the time of visa number availability.
The key issue is how the INS would construe the term “pending.” Would it be from the date the petition is received at the INS or when the INS formally acknowledges receipt? If it is the former, more days could be advantageously subtracted from the child’s age at the point of visa availability.
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, notwithstanding the age-out protection extended under this section, his or her petition will automatically be converted to the appropriate category, which is typically the family second preference (2B) category for sons or daughters of permanent residents. The son or daughter will retain the priority date associated with the original petition.
Asylum and Refugee Applicants
Section 4 of the CSPA extends age-out protection to the children of asylum applicants, amending INA § 208(b)(3), to provide that an unmarried alien who seeks to accompany or follow to join a parent granted asylum, and who was under 21 years of age on the date the parent applied for asylum but turned 21 during the pendency of the application, will continue to be classified as a child for purposes of derivative asylum benefits.
Section 5 of the CSPA extends this same protection to the children of aliens granted refugee status.
Petitions for Sons and Daughters of Naturalized Citizens
Section 6 of the CSPA provides that the family-sponsored (2B) petition of an unmarried alien son or daughter whose permanent resident parent subsequently becomes a naturalized US citizen will be converted to a third preference petition for an unmarried son or daughter of a US citizen, unless the son or daughter elect otherwise. Regardless of whether the petition is converted, the son or daughter may retain the priority date on the original petition.
A son or daughter would want to make such an election if the family first preference (adult sons and daughters of US citizens) for his or her country is more backlogged than the 2B preference. For instance, the August 2002 cut-off date under the 2B preference for Philippines is December 8, 1993 while the cut-off date for this country under the first preference is November 1, 1989. A Filipino child who has turned 21, and is unable to take advantage of the CSPA, could nevertheless elect to remain under 2B, even if the parent has naturalized, in order to take advantage of a better cut-off date.
Section 7 of the CSPA provides that nothing in the new law may be construed to limit or deny benefits provided under INA § 204(a)(1)(D) (dealing with battered immigrant children). Finally, Section 8 of the new law provides that the age-out relief extended under the legislation took effect upon enactment and applies to: (1) immigrant petitions that have been approved but where no determination has yet been made on the beneficiary’s application for an immigrant visa or adjustment of status; (2) immigrant petitions pending before or after the enactment date; and (3) applications pending before the Department of Justice or Department of State on or after the enactment date.
The way the “Effective Date” has been defined could raise interesting possibilities. Thus, children who turned 21 in the past, and moved from the immediate relative to the first preference category, may after CSPA’s enactment be able to proceed to apply for permanent residence as if they are still under 21. Similarly, an individual stuck in the 2B category can determine if he or she was below 21 at the time the visa became available under 2A. If so, the child could apply for permanent residence as if her or she is still under 21. In the case of a derivative child who turned 21 when the parent become a legal permanent resident, the INS will argue that the “effective date” of CSPA will not be applicable to such a child as a determination has already been made on the parent beneficiary’s immigrant visa or adjudicated application. On the other hand, if the parent has yet to obtain permanent residence as of the date of CSPA’s passage, the 21+ year old child would be able to get permanent residency when the parent obtains it.
About The Author
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is a trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or firstname.lastname@example.org.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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