By James A. Bach, Esq.
On August 6th, President Bush signed “Child Status Protection Act” (H.R. 1209, Pub. L. No. 107-208) which addresses the problem of minor children losing their eligibility for certain immigration benefits as a result of INS processing delays (“aging out”). “Aging Out” occurs when a child turns 21 before immigrant status is granted, either through adjustment of status (in the United States) or an Immigrant Visa (in the child’s home country). In that case, the child is no longer eligible to receive an “Immediate Relative” visa, or is no longer eligible for derivative status under a parent’s Immigrant petition. The practical result of “aging out” is to automatically move the child to a lower preference category or require the child to submit his or her own petition, resulting in years of delays and possible ineligibility.
The “Child Status Protection Act” eliminates “aging out” cases which are caused by INS delays. The law now applies to currently pending Immigrant Visa petitions, and approved Immigrant Visa petitions where no determination has yet been made on the application for an Immigrant Visa or Adjustment of Status. It also applies to pending Asylum and Refugee petitions. The Act provides relief in the following areas:
· A child under 21 years old who is the beneficiary of a Family-Based Immigrant Petition filed by an U.S. Citizen parent (“Immediate Relative”), does not “age out” if the INS cannot grant Immigrant status before the child’s 21st birthday. Instead, the child’s age is determined on the date the Immigrant Petition was FILED. The Act prevents children from becoming subject to the Family 1st Preference quota backlogs (for adult children of U.S. Citizens) simply because they turn 21 before the INS can process the case.
· Sometimes Permanent Residents become naturalized U.S. Citizens during the processing of a Family-Based 2nd Preference Visa Petition for a child. In that case, the child’s Immigrant Petition could be converted to “Immediate Relative” if the child was under 21 at the time of the parent’s naturalization.
· A married child of a U.S. Citizen who obtains a divorce while a Family-Based 3rd Preference (Married Sons and Daughters of U.S. Citizens) Immigrant petition is pending could convert the case to an “Immediate Relative” petition if the child was under 21 at the time of the divorce, or 1st Preference if over 21 at the time of the divorce.
· The age of children of Permanent Residents who have filed an Immigrant Petition (including children who are accompanying or following to join Family-based, Employment-based or Diversity immigrants) is determined on the date an immigrant visa number becomes available, reduced by the number of days the petition was pending, but only if the individual seeks to acquire permanent resident status within one year of such availability. (For example, an individual who is 22 years old on the date the visa number became available, but whose Immigrant Visa petition was pending for eighteen months, would have his or her age reduced by eighteen months and would continue to be considered a child.) If the child is still over 21, his or her petition is automatically converted to the appropriate category (typically 2B son or daughter of permanent resident category). The son or daughter will retain the priority date associated with the original petition.
· A spouse or child of a person granted asylum may be granted the same status, if accompanying or following to join. The age of the child is set on the date their parents Asylum or Refugee application is FILED.
· A recently naturalized U.S. Citizen will have their children’s preference category in a pending Immigrant petition upgraded at the time of naturalization, unless they request otherwise. The priority date remains unchanged.
Section 203(c) of the Immigration Act of 1990 makes available up to 55,000 permanent resident immigrant visas each year by random selection through a Diversity Visa lottery. The visas are distributed among six geographic regions with a greater number of visas going to regions withlower rates of immigration. People born in the following countries are generally INELIGIBLE to apply: Canada, China (mainland born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, the Philippines, South Korea, the United Kingdom and dependent territories, and Vietnam.
Applicants must have either a high school education or its equivalent, or two years of work experience within the past five years in an occupation that requires at least two years of training or experience. There is no initial application fee or special application form to enter.
A lawyer or other consultant is not needed to apply, but winners may wish to consult a lawyer to assist with the final paperwork.
More information about the Diversity Visa lottery program can be found on the State Department website.
* The purpose of this newsletter is to inform potential clients of the type of legal issues our firm handles. It is not intended to establish any attorney/client relationship, and we accept no responsibility for the accuracy of the information provided. We cannot discuss or clarify any of the information contained in our newsletters, except with our existing clients.
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