News

Congress Passes "Age-Out" Protection Legislation

Courtesy of AILA

This legislation is NOT YET LAW - However, once it is signed into law by the President, the bill would prevent the "aging out" of children who turn 21 years of age while an application for permanent residency is pending.

As explained below, in order for minor children to be part of a parent's immigrant visa petition/adjustment of status application, the child must be under 21 years of age and unmarried.  Once a child turns 21, he/she no longer qualifies under the parent's petition and must have a separate petition filed under a different visa category on his/her behalf.  This would cause extensive delays of many years and possibly cause the child to fall out of status in the United States.

To remedy this outcome, Congress has stated in the legislation that determination of whether a son or daughter of a U.S. Citizen is an "unmarried child" will be based on the age of the son or daughter at the time the Immigrant Visa petition is filed.  Therefore, if a child is under 21 when an immigrant visa petition is filed, the child would remain eligile to immigrate under the petition filed by the parent, even if he/she is over 21 when INS approves the petition/application.

However, children of Legal Permanent Residents (LPRs) must show that he/she was under 21 years of age at the time an immigrant visa becomes available and that he/she intends to acquire permanent residency status within 1 year of the immigrant visa becoming available (i.e., the date the priority date becomes current).

The priority date is either the date an immigrant visa petition is filed or the date an Application for Alien Employment Certification is filed. The priority date is used to determine where an applicant's place in the line is while waiting for the availabilty of an immigrant visa. A limited number of immigrant visas are distributed each year and where the demand exceeds the supply, waiting periods for immigrant visas result.

Age-Out Protection Bill Cleared for Presidentıs Signature

The House of Representatives, on July 22, approved and cleared for the President legislation that addresses the problem of minor children losing their eligibility for certain immigration benefits as a result of INS processing delays. The Senate previously amended and approved the measure on June 13. Under current law, a childıs eligibility to receive a visa or be part of his or her parentıs application is based on the childıs age at the time that the alien relative petition is approved, not the time the petition is filed. Because of enormous backlogs and processing delays, many children turn 21 before the INS adjudicates the petition. In such cases, the child ³ages-out² and is ineligible to receive an immediate relative visa or is no longer considered to be part of the parentıs application. The childıs petition is either automatically moved to a lower preference category or the child is required to submit his or her own petition, resulting in years of delays and possible ineligibility.

The ³Child Status Protection Act² (H.R. 1209), sponsored by Representatives George Gekas (R-PA) and Sheila Jackson Lee (D-TX), and subsequently broadened and improved by Senate legislation (S. 672) sponsored by Senator Dianne Feinstein (D-CA), provides that the determination of whether an unmarried alien son or daughter of a U.S. citizen is considered an ³immediate relative child² (under 21 years of age) will be based on the age of the alien at the time the Petition for Alien Relative (Form I-130) is filed on his or her behalf, rather than on the date the petition is adjudicated, as is the case under current law. The legislation makes similar determinations in the case of permanent resident parents who subsequently naturalize after having filed petitions for their sons or daughters and citizen parents who file petitions for married sons or daughters where such sons or daughters later divorce. In the former situation, the age determination will be made at the time of the parentsı naturalization. In the latter, the alien beneficiaryıs age will be determined as of the date of his or her divorce.

For the children of legal permanent residents, or those who are accompanying or following to join on a petition for an immigrant visa, their eligibility will be determined based on the date that a visa becomes available to them, but only if they seek to acquire permanent resident status within one year of such availability. In addition, the legislation provides age-out protection to alien children who accompany or follow to join parents who have filed for asylum or refugee status. Finally, Section 6 of the bill provides that the family-sponsored petition of an unmarried alien son or daughter whose permanent resident parent subsequently becomes a naturalized U.S. citizen will be converted to a petition for an unmarried son or daughter of a U.S. citizen, unless the son or daughter elects otherwise.

President Bush is expected to sign the legislation in the near future.