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

President Bush Signs Child Status Protection Act
by Clarice F. Liao, Esq.

The Child Status Protection Act that President Bush signed on August 6, 2002 addresses the problem of minor children losing their eligibility for certain immigration benefits as a result of INS processing delays. Without this legislation, minor children who were the (a) direct beneficiaries of family immigrant visa petitions, or (b) derivative beneficiaries of employment based immigrant visa petitions, or (c) derivative beneficiaries of diversity lottery visa applications could lose their eligibility for such immigration benefit when they turned 21 years of age (i.e., they "aged-out"). A child who "aged-out" is no longer considered to be a child and his/her petition was either automatically moved to a lower preference category or he/she was required to submit his/her own petition, resulting in years of delays and possible ineligibility. The Child Status Protection Act allows a child who aged-out to be considered a child for certain immigration benefits.

Before embarking on a summary of the Child Status Protection Act, the following is some background information on the different immigrant visa categories that are affected by the Child Status Protection Act. The "immediate relative" category is for the unmarried, minor children of a U.S. citizen. The "family first preference" category is for the unmarried children of U.S. citizens. The "family second preference 'A'" category is for the unmarried, minor children of Lawful Permanent Residents. The "family second preference 'B'" category is for the unmarried, adult children of Lawful Permanent Residents. The "family third preference" category is for the married children of U.S. citizens. The children of principal applicants in the employment-based categories and the diversity immigrant (also known as the "green card lottery program") would also be affected.

If a child was under 21 years of age when his/her U.S. citizen parent filed the I-130 Petition for Alien Relative to classify the child in the immediate relative category, and subsequently, the child aged-out, the child will still be considered an immediate relative. The child's petition will not be downgraded to the family first preference category (unmarried adult son or daughter of U.S. citizen).

If a child was under 21 years of age when his/her Lawful Permanent Resident (LPR) parent filed the I-130 Petition for Alien Relative to classify the child in the family second preference "A" category, and subsequently, the LPR parent naturalizes while the child is still under 21 years of age, the petition is converted to qualify the child for classification in the immediate relative category, even if the child subsequently ages-out. The key here is that the child was under 21 when the LPR parent became a naturalized U.S. citizen.

If a child's U.S. citizen parent filed the I-130 Petition for Alien Relative to classify the child in the family third preference category, and subsequently, the child's marriage was terminated, the petition is converted to qualify the child for classification (a) in the immediate relative category if the child was under 21 years of age when the marriage was terminated, or (b) in the family first preference category if the child was over 21 years of age when the marriage was terminated.

The determination as to whether certain unmarried sons and daughters seeking status as family-sponsored, employment-based, and diversity immigrants satisfy the age requirement is made by using the child's age when his/her immigrant visa number became available and subtracting from it the number of days that the petition was pending. This calculation only applies if he/she filed an application for adjustment of status or for an immigrant visa within one year of his/her immigrant visa number availability. If after this calculation, the child's age is determined to be 21 years or older, the child's petition shall automatically be converted to the appropriate category and the child shall retain the original priority date.

The unmarried child of a person who was granted asylum may be granted asylee status if he/she is accompanying or following to join the parent who was granted asylum. If the child was under the age of 21 when the parent applied for asylum, the child will still be considered a child if he/she ages out during the pendency of the parent's asylum application. Similarly, the child of a parent who was granted admission as a refugee continues to be a child if he/she aged-out during the pendency of his/her refugee application.

The Child Status Protection Act also provides that the beneficiary of a family second "B" preference petition is reclassified into the family first preference category if his/her petitioning parent becomes a naturalized U.S. citizen. However, the beneficiary may file a written statement with the INS electing not to have such reclassification occur (or if it has occurred, to have such reclassification revoked). The beneficiary may retain his/her original priority date. This reclassification applies to any pending or approved petitions that were properly filed before the parent's naturalization.

The Child Status Protection Act is effective on the date of its enactment, August 6, 2002 and it applies to any alien who is a derivative beneficiary or any other beneficiary of (a) an approved petition and who has a pending application for adjustment of status or immigrant visa, (b) a petition pending on or after August 6, 2002, or (c) an adjustment of status or immigrant visa application pending on or after August 6, 2002.

Although the Child Status Protection Act does not specifically address what type of petition needs to have been filed, approved, or pending, it can be safely assumed that it applies to I-130, I-140, and I-526 petitions as well as any other type of immigrant visa petition. Also noteworthy is the fact that the Child Status Protection Act does not apply to cases where a decision has already been made on an adjustment of status or immigrant visa application before August 6, 2002 because of the act's language. Nonetheless, it would be interesting to see whether the INS or the Department of State would consider reopening and reconsidering an adjustment or immigrant visa application solely because the child had aged-out. This could be wishful thinking, however, since it could lead to opening the door to thousands of cases that are years or decades old, and the INS and the Department of State most likely do not have the resources to readjudicate these old cases.
On a positive note, the Child Status Protection Act comes at time when severe backlogs at the INS and the Department of State have jeopardized the immigration of children who cannot immigrate with their parents because they have aged-out. For this, the Child Status Protection Act is welcome news to parents and their children who now do not have to fret about being separated because the children age-out.


About The Author

Clarice F. Liao is a member of the California State Bar, the American Immigration Lawyers Association (AILA), the Immigration Section of the Los Angeles County Bar Association (IS-LACBA), and the Southern California Chinese Lawyers Association. She is the 2002-2003 Vice Chair of the Southern California Chapter of AILA and the 2002-2003 Second Vice Chair of IS-LACBA. She is also admitted to practice before the U.S. District Court for the Central District of California and the Ninth Circuit Court of Appeals. Ms. Liao is a graduate of Southwestern University School of Law (J.D. 1997) and UCLA (B.A 1989, M.A. 1991). At Southwestern she distinguished herself as an Articles Editor of Southwestern's Journal of Law and Trade in the Americas and as a judicial extern at the Argentine Supreme Court in the office of Justice Enrique Petracchi. Ms. Liao is fluent in Spanish and is conversant in Mandarin Chinese and French.


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