Premium Processing I-140: Problematic for Children Aging Out
Posted Aug 25, 2006
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As reported in our August 18, 2006 NewsFlash, the USCIS has instituted premium processing for I-140s, beginning with the EB3 category. While this is welcome news and brings with it significant benefits for many, it is not beneficial in all cases. Many of the pros and cons were previously analyzed in our MurthyBulletin article, Detailed Analysis of Premium Processing for I-140s, Part 1 and Part 2, available on MurthyDotCom. Once premium processing became a possibility, we had the opportunity to apply it in real-world situations. This quickly brought to light one group of cases for which premium processing could be detrimental. These are cases involving children who may age out, or turn 21 years old, before the green card is approved.
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Background : CSPA
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Before the Child Status Protection Act (CSPA) came into effect, dependant children lost the ability to obtain the green card as derivatives in their parents' employment-based cases upon turning 21 years of age. The CSPA affords protection to children in certain circumstances, essentially locking in the age at under 21, if they qualify under a formula for determining their ages for purposes of these immigration cases. This ties into premium processing because a key component of the CSPA formula is the length of time the I-140 remains pending. Thus, expediting the I-140 could make all the difference in whether or not a child qualifies under the CSPA.
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Application of CSPA and I-140 Premium Processing
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To determine the derivative child's age for immigration purposes, her/his actual age at the time the visa number becomes available is reduced by the amount of time that the I-140 remained pending. The faster the I-140 is approved, therefore, the less time the child is able to subtract from his or her age, thereby decreasing the chance of protection under the CSPA. In order to use the CSPA, the child must seek to acquire the status of permanent resident within one year of the availability of the visa number.
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Benefit in Not Filing under I-140 Premium Processing
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For example, if a parent's employer files the I-140 when the child is 17 years and 3 months old, and the I-140 is approved six months later, when the child is 17 years and 9 months old, it is possible that the priority date could become current when the child is 21 years and 4 months old. Without the CSPA, this child would “age out” of the parent’s case. Under the CSPA formula, the child may subtract the length of time that the I-140 remained pending from his/her current age. Thus, if the I-140 remained pending for 6 months, the age is locked in at 20 years and 10 months (real age of 21 years and 4 months,  minus the six months that the I-140 was pending). Thus, the parent is able to keep the child as a dependant on the case, provided that action is taken (for example, by filing the I-485 application to adjust status) within a year of the visa number becoming available. Therefore, such a case would have a favorable outcome.
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In the same scenario, however, if the I-140 is premium processed and approved in 15 days, the outcome would be unfavorable for the child. With premium processing, a child who is 21 years and 4 months old at the time the priority date becomes available would only be able to subtract 15 days from his/her age, locking the child's age in at 21 years and 3½ months. In this example, the child would not be covered by the CSPA and would have lost eligibility to obtain a green card as a derivative in her/his parent's employment-based case.
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Recommendation : Consider Impact of I-140 Premium on Children
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As can be seen from the above illustrations, it is impossible to predict whether a child will need or be able to enjoy CSPA protection, as there are so many unknown factors, such as how long the I-140 will be pending and how old the child will be when the priority date becomes current. If one is trying to maximize the chances of CSPA protection, however, the longer the I-140 remains pending, the better. With retrogression potentially delaying cases by several years, any applicant with teenaged derivative children needs to be aware of these issues before requesting I-140 premium processing.
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Conclusion
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Because of the complexity of the CSPA formula and its interplay with priority dates and I-140 processing times, it is advisable that anyone concerned about a child possibly aging out should consult with an experienced immigration attorney.
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Superficially, obtaining an I-140 decision more quickly would seem to be desirable. As illustrated here for our MurthyDotCom and MurthyBulletin readers, however, this is not always the case. Since children born in the United States are U.S. citizens under existing immigration laws, these parents need not be concerned about the issue of aging-out. Those with foreign-born children who are fairly young generally do not need to be concerned with this matter, either. It is teenagers who may need this benefit the most. It could be devastating for them and their families to face the consequences of being left out when their parents obtain the green card.