President Signs Bill Protecting Visa Applicants from Aging Out

IMMIGRATION LAW & POLICY

Obtaining Lawful Permanent Residence Status

PRESIDENT SIGNS BILL PROTECTING VISA APPLICANTS FROM AGING OUT
Immigrants' Rights Update, Vol. 16, No. 5, September 10, 2002

President Bush has signed the Child Status Protection Act, which prevents certain non-U.S. citizen children from "aging out" of eligibility to immigrate as children when they turn 21 years of age. The act was signed into law on Aug. 6, 2002. Its major provisions are summarized below.

Children of U.S. citizens. Under the new law, the following three categories of children are classified as immediate relatives, even though they have reached the age of 21 before the final adjudication of their applications for permanent residence:

children of U.S. citizens who are under the age of 21 on the date their parents file an I-130 petition for them;
children whose permanent resident parents naturalize after filing I-130s for them, as long as they were under the age of 21 on the date their parents naturalized; and
married sons and daughters who divorce after their U.S. citizen parents file I-130s for them, as long as they were under the age of 21 on the date of their divorce.

Children of permanent residents. The new law creates a formula for calculating age that protects some children from "aging out" of the family preference, employment-based, and diversity categories. The age of child applicants—both as principals and derivatives—is determined by taking the age of the child when the immigrant visa becomes available and subtracting the number of months during which the visa petition was pending.

In the family preference categories, this means that children of permanent residents who are over 21 when their priority dates become current may still immigrate as children if, by subtracting the number of months that their I-130 was pending, their age falls below 21.

This formula can only be used by applicants who remain unmarried and who apply for permanent residence within one year of the date that an immigrant visa becomes available to them. Applicants whose age is determined to be over 21 under this formula are automatically reclassified to the appropriate category (e.g., unmarried sons and daughters of permanent residents) and their original priority date is retained.

Unmarried children of asylees and refugees. As long as they are under the age of 21 on the date their parents apply for asylum or refugee status, children of asylees and refugees who seek derivative status continue to be classified as children if they turn 21 while their parents' asylum and refugee applications are pending. The same rule is used when derivative children apply for permanent residence as asylees.

Unmarried sons and daughters of naturalized citizens. Because the first preference category (unmarried sons and daughters of U.S. citizens) for the Philippines has become far more backlogged than the 2B category (unmarried sons and daughters of permanent residents), Filipinos who naturalized unwittingly lengthened the time it would take for their sons and daughters to immigrate. The new law now allows unmarried adult sons and daughters whose permanent resident parents naturalize after filing I-130s for them to choose to proceed with their cases as if their parents had never naturalized. Sons and daughters who want to take advantage of this provision must file a written statement with the attorney general that they do not want their petitions to be converted to the first preference category or that they want to revoke a petition that has already converted.

Battered children. The Child Status Protection Act specifies that none of its provisions can be construed to limit or deny the rights or benefits provided to "aged out" battered immigrant children under section 204 of the Immigration and Nationality Act.

Effective date. The law took effect on the date of enactment and applies to cases pending with the Immigration and Naturalization Service or the U.S. State Dept. on or after that date. This means that unmarried children who "aged out" before the law passed may be able to retain immediate relative status as long as a final determination had not been made on their applications for adjustment of status or an immigrant visa.