Age-Out Protection Bill Likely to Become Law
Posted Aug 02, 2002

Legislation containing a significant, favorable change in immigration law passed in the U.S. House of Representatives on July 22, 2002. The bill has already passed the U.S. Senate and now is ready for the President's signature. The bill is known as the "Child Status Protection Act" and is designed to address the problems of children who "age out" of eligibility for an immigration category by reaching 21 years of age. This is a significant problem in immigration law, made worse by the extended delays in application processing. At present, the child's eligibility is based upon his/her age on the date the case is finally decided. This rule can have a significant negative impact upon whether the child will ultimately be eligible for immigration benefits or, at the very least, may cause delays of many years. We explained this matter in a previous MurthyBulletin article, Age-Out Legislation Pending, available on MurthyDotCom. The point at which the age is determined would vary based upon the type of case, as described below.

Children of U.S. Citizens

For family-based petitions filed by U.S. citizens on behalf of children under 21 years of age, the child must be under 21 at the time of filing the I-130 (petition for alien relative). The child remains eligible even if s/he turns 21 before the case is approved. Thus, even if a person files the I-130 Petition which is received by the INS on the day before the child's 21^st birthday, it would appear that s/he would be protected and considered to be an immediate relative under this new law. Immediate relatives are a privileged category with no limitations on the number of people eligible to immigrate each year. Thus, they are not subject to priority dates and the accompanying backlogs.

Children of Permanent Residents

There is no change to the processing of most "Family 2A" cases for children of permanent residents. When they turn 21 years old, their cases convert to "Family 2B." There would be a significant change, however, in the instance of a petitioning parent who naturalizes after an I-130 has been filed for the child. The category, in this case, converts to immediate relative (child of U.S. citizen) and, under the Child Status Protection Act, the eligibility is measured by the child's age at the time of the parent's naturalization.

Married Sons and Daughters of U.S. Citizens

Even if a child is under 21, if s/he is married, s/he no longer qualifies as a child under immigration law. However, if a child divorces while still under 21 years of age, then it is possible to qualify as a child under an I-130 petition filed by a parent. If an I-130 is filed for a married son or daughter of a U.S. citizen (family, 3^rd preference) and the petition category changes due to the child's divorce, the relevant factor for age-out purposes is the age as of the date of the divorce. In that instance, the child may either qualify as an immediate relative (if s/he is still under 21 at the time of the divorce) or as family, first preference (if s/he is over 21 years of age).

"Derivative" Children

Unmarried children can also qualify as "derivative" applicants in other types of cases, such as employment-based, diversity "lottery," or certain family-based categories that allow for children to be included. In these cases, the child's eligibility is determined as of the date that a visa becomes available (i.e. the time when eligible for adjustment of status, with a current priority date), provided that s/he seeks permanent residence within one year. (Diversity lottery cases have a separate annual deadline that is unrelated to this legislation.)

The President is expected to sign this bill into law in the near future. Once signed, the law will become effective on the date of enactment. Given the likelihood of this new law, those who have children close to turning 21 may wish to file the appropriate applications or petitions for their children now.