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Aging Out In An Age Of Retrogression: Is There Any Relief For Derivative Children Of Employment-Based Immigrants?

by James D. Eiss, Esq. and Danielle Rizzo

The Immigration and Nationality Act, section 101(b) defines a "child" as someone who is unmarried and under the age of twenty-one. Prior to the passage of the Child Status Protection Act in 2002, the child of an employment-based immigrant could only obtain an immigrant visa based on a parent’s approved I-140 petition if he remained a child right up until the date that he obtained the immigrant visa. In many cases children "aged out" due to processing delays on the part of INS and the Department of State. The Child Status Protection Act (PL 107-208), or CSPA, was passed to remedy this problem.

The CSPA was enacted and became effective on August 6, 2002. As Sheela Murthy pointed out in a recent article, "The Impact Of Retrogression On The CSPA", the CSPA provides age-out protection for children who would otherwise lose eligibility for immigrant visas due to processing delays, but does not protect children from aging out due to visa number unavailability. It may be surmised that Congress, in its usual lack of understanding of the whole immigration process, did not foresee the possibility of delays caused by visa retrogression and so did not address the issue.

Section 3 of the CSPA applies to the derivative children of employment-based immigrants. It contains a rather convoluted formula that is designed to offset the age of derivative children on the date a visa number becomes available, by the number of days the parent’s petition was held up due to USCIS processing delays. When applied, the formula yields the “CSPA age” of the child, an age that is determined on the date a visa number becomes available, and that, once established, never changes, so long as the child seeks to obtain an immigrant visa within a year of a visa number becoming available. 

The formula is:

Age on date visa becomes available – number of days I-140 was pending = CSPA Age

The age of the child when a visa number becomes available is the first date after the parent’s I-140 has been approved on which the parent’s priority date becomes current. The formula only applies if the child seeks to procure an immigrant visa within one year of a visa number becoming available.

Prior to retrogression of employment-based visa numbers in FY 2005, the CSPA locked in a derivative beneficiary’s age as of the date the parent’s I-140 petition was filed. After retrogression, however, the result of application of the CSPA formula cannot be determined until after the parent’s priority date becomes current. In most cases, the reduction of the child’s age by the number of days the I-140 petition was pending will not reduce the child’s “CSPA age” to below twenty-one. Thus, in an age of retrogression, the CSPA does very little to help children from aging out. This article proposes an administrative solution through which USCIS could extend CSPA protection to the children of employment-based immigrants who would otherwise age out due to the unavailability of immigrant visa numbers.

The CSPA formula fails to protect children from aging out because the amount of time for which an I-140 petition remains pending is much shorter than the amount of time for which a visa number will remain unavailable. Currently, all of the service centers are adjudicating all types of I-140 petitions in under a year’s time, with some processing times as short as 2-3 months, while the current speculation is that it could be 10-15 years before some third preference visa numbers become available for newly filed I-140 petitions. The child’s age is therefore not reduced enough by the CSPA formula to make him “under twenty-one” for the purpose of retaining eligibility for an immigrant visa as a derivative.

USCIS cannot change the clear language of the CSPA, but it can control the amount of time for which an I-140 petition remains pending. If USCIS were to allow I-140 petitions to remain pending for the amount of time it takes a visa number to become available, then the CSPA would protect derivative children from aging out. USCIS currently has a policy of holding I-130 petitions for adjudication until a visa number becomes available. If a similar adjudication policy were adopted by USCIS on I-140 petitions, the result would be that a child’s CSPA age, for all intents and purposes, would be “locked in” at the age of the child on the date the I-140 petition is filed, just as before retrogression.

In most cases, the beneficiaries of I-140 petitions would not be harmed by USCIS holding the petition for adjudication until a visa number becomes available. Until a visa number becomes available, the beneficiary may not apply for an immigrant visa anyway. Yet there is one limited, but important, circumstance in which the quick approval of an I-140 petition is absolutely essential even when visa numbers are unavailable. Section 104(c) of the American Competitiveness in the Twenty-First Century Act (AC21) provides:

Notwithstanding section 214(g)(4) of the Immigration and Nationality Act, any alien who--

  1. is the beneficiary of a petition filed under section 204(a) of that Act for a preference status under paragraph (1), (2), or (3) of section 203(b) of that act; and
  2. is eligible to be granted that status but for application of the per country limitations applicable to immigrants under those paragraphs,

may apply for, and the Attorney General may grant, an extension of such nonimmigrant status until the alien’s application for adjustment of status has been processed and a decision made thereon. [End quote].

 In a May 12, 2005 memo written by Bill Yates, USCIS interpreted this section of AC21 to allow the beneficiaries of approved I-140 petitions; who are currently in H-1B status; and who are unable to obtain an immigrant visa due to retrogression, to extend their H-1B status in three year increments. If USCIS were to adopt a policy of holding I-140 petitions for adjudication, the effect would be to render § 104(c) of AC21 obsolete. There would be no situation in which it would apply.

In many situations, the same H-1B beneficiaries who are eligible for three-year extensions of stay under § 104(c) of AC21 would also be eligible for one-year extensions of H-1B status under § 106 of AC21, which allows H-1B beneficiaries whose labor certification or I-140 petition was filed at least 365 days ago or more, to extend H-1B status indefinitely in one-year increments until a final decision is made on the alien’s lawful permanent residence. I-140 beneficiaries would be inconvenienced by having to file an H-1B petition every year, but in most cases would not lose eligibility to extend their H-1B status.

There are, however, limited circumstances in which § 104(c) would apply to allow the beneficiary to extend H-1B status, and § 106 would not apply. Whenever an alien’s labor certification and I-140 petition are approved in less than 365 days, § 104(c) applies to allow an alien to extend H-1B status before § 106 applies to allow such an extension. In such cases, I-140 beneficiaries depend on the timely adjudication of their I-140 petitions in order to secure an H-1B extension which will allow them to remain in the United States while they wait for a visa number to become available. A USCIS policy of holding I-140 petitions for adjudication until a visa number is available would seriously harm such beneficiaries. 

Such a policy could also harm two types of I-140 beneficiaries who wish to change jobs before an immigrant visa becomes available. First, an alien who was able to concurrently file an I-140 and I-485 because visa numbers were available, but whose priority date later retrogressed, causing his adjustment of status application to pend for a long time, would be eligible to “port” to a new employer under AC21, but only upon approval of the I-140 petition. Second, an alien who is not eligible to port to a new employer under AC21 but who would like to change jobs must have a new I-140 petition filed by the new employer. If the initial I-140 is approved in a timely manner (and not later revoked), then 8 CFR § 204.5(d) permits the alien to retain the priority date established by the first I-140 petition. This will decrease the amount of time before a visa number becomes available on the basis of the second I-140 petition. Again, a USCIS policy of holding I-140 petitions for adjudication until a visa number is available would seriously harm these types of I-140 beneficiaries.

USCIS could allow I-140 petitioners to choose, upon submission of the petition, whether they would like their petitions held for adjudication until a visa number becomes available, or whether they would like the petition adjudicated as soon as possible. This would be beneficial in that it would probably speed I-140 processing times even further, by taking many petitions out of the adjudication queue. Such a policy may impose an undue administrative burden on USCIS, however, and may be too difficult to orchestrate. However, it is a policy worth considering.

About The Author

James D. Eiss, Esq. is a former INS officer who has been practicing immigration law in the Buffalo, NY area for the past 16 years.

Danielle Rizzo is a third year law student and has been a paralegal at the Law Offices of James D. Eiss for the past 4 years.

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