- By Vaman B. Kidambi, Esq.
On August 6, 2002, the President signed the "Child Status Protection Act of 2002" - Public Law 107-208. A cable from the Department of State offers guidance on the Act. It also provides initial interpretative guidance regarding it, as well as procedures to be used to implement it.
Effective Date and Applicability
The amendments made by this Act shall take effect on the date of the enactment of this Act [August 6, 2002] and shall apply to any alien who is a derivative beneficiary or any other beneficiary of:
a) A petition for classification under Section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) approved before such date but only if a final determination has not been made on the beneficiary's application for an immigrant visa or adjustment of status to lawful permanent residence pursuant to such approved petition;
b) A petition for classification under Section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) pending on or after such date; or
c) An application pending before the Department of Justice or the Department of State on or after such date."
The age-out protections of the Act apply to the following three classes of cases:
a) Cases where the petition or visa application was filed on or after the date of enactment (August 6, 2002);
b) Cases where the petition was filed prior to August 6, 2002 but was still pending (i.e., not yet approved) on that date; and
c) Certain cases where the petition was approved prior to August 6, 2002, but only if a final determination has not been made on the beneficiary's (including derivative beneficiary's) application for a visa or adjustment of status prior to that date. At present, this means that an alien whose IV application was denied prior to August 6 because s/he aged out or was otherwise found ineligible cannot benefit from the Act. However, for this purpose a 221(g) denial will not be considered a final determination. Therefore, an alien whose application was filed prior to August 6, but was refused on 221(g) grounds will receive the benefit so long as the application was otherwise pending on August 6. Under this interpretation, beneficiaries (and derivative beneficiaries) of petitions approved prior to August 6, 2002 who never applied for a visa prior to August 6 because they had aged out will receive no benefit and cannot apply afterward in order to receive a benefit. (Note that these are preliminary interpretations and could change after further interagency discussions).
d) DV applicants applying on or after August 6 or whose cases were pending on that date will receive the benefit.
a) The Act Applies to Children who are Accompanying or Following to Join
The new law extends age-out protection to the children of lawful permanent residents, including children who are accompanying or following to join family-sponsored, employment-based, and diversity immigrants. Under the legislation, the age of the alien child will be determined by reducing the number of days the petition was pending from the date on which an immigrant visa number becomes available, but only if the individual seeks to acquire permanent resident status within one year of such availability. (For example, an individual who is 21 years and six months old on the date the visa number became available, but whose immigrant visa petition was pending for eight months, would have his or her age reduced by eight months and would continue to be considered a child). It also provides that if the alien is determined to be 21 years of age or older at the time the visa number becomes available, notwithstanding the age-out protection extended under this section, his or her petition will automatically be converted to the appropriate category (typically the F2B son or daughter of permanent resident category), and the alien will retain the priority date associated with the original petition.
b) Children of U.S. Citizens Protected
Under the new rules, consular officers will use the age of the beneficiary on the date of filing the Form I-130, Petition for Alien Relative, to determine whether the applicant qualifies as an IR-2, IR-3 or IR-4. For example, if a Form I-130 is filed for a child of an American Citizen when the child is under 21, the child will permanently qualify as a child as long as he/she does not marry.
A certain provision amends the Act to allow the age of an alien child who is a Second Preference beneficiary but whose parent/s naturalizes and whose petition is converted to Immediate Relative classification, to be considered the age on the date of naturalization. Consular officers will now use the child's age on the date of the parent's naturalization to determine whether the child will be eligible for Immediate Relative status. For example, if a LPR files a Form I-130 for a 17 year-old son and then naturalizes when the son is 20, the son will remain eligible for a visa as an IR-2, even if the son has attained the age of 22 on the date of visa application. The applicant should submit evidence of his parent's naturalization (a bona fide copy of the naturalization certificate) to establish eligibility for age-out relief under this provision of the Act.
The Act will allow third preference married children of American Citizens to use the age on the date of the termination of a marriage when applying for a visa. If the alien is under 21 at the time of the termination of his/her marriage, then his/her petition will convert to IR- 2. If the alien is 21 or older on the date his/her marriage is terminated, an F-3 will convert to F-1 status. For example, if the 19 year-old married son of an American Citizen petitioner obtains a divorce before attaining 21, as long as he remains unmarried, the son will be classifiable as an IR-2, even if he does not apply for a visa until age 23.
Aliens who qualify as a K-4 child are eligible for child status protection under this section if a separate immediate relative petition has been filed in their name and they are accompanying a K-3 parent.
c) Computation of Age under the Act
The Act provides relief from age-out by establishing the alien's age as of the date a visa becomes available for the alien (or the alien's parent), minus the number of days that the petition was pending. Only those aliens who seek to acquire the status of an alien lawfully admitted for permanent residence within one year of visa availability are eligible for relief under this section. For the purposes of the Act, visa availability is defined to require both a current priority date and an approved petition. The number of days a petition has been pending is calculated from the date the petition was filed to the date the petition is adjudicated.
The Department of State has provided two examples to illustrate the initial interpretation of this provision:
1. If an LPR parent filed an I-130 in 1998 when his son/daughter was 20 and the visa became available today and the I-130 was never adjudicated until today, the beneficiary's "age" when determining preference category would be equal to the age of the alien on the date the priority date became current (24 years) minus the period the petition was pending adjudication (4 years), which would mean the alien's age would be deemed to be 20. The alien, however, would only benefit from this special treatment if s/he applies for a visa within one year of the visa becoming available. Even though the beneficiary in this example is chronologically age 24 today (the date on which his visa becomes available) - by applying the formula, he is only 20 because his chronological age on the date his visa becomes available has been reduced by the number of days his petition has been pending (4 years).
2. If, however, this same Form I-130 had been adjudicated in 2000, the beneficiary's "age" would be 22 when determining preference category. Although the beneficiary is chronologically 24 (his age on the date his visa becomes available), his petition was only pending for 2 years, so only two years are deducted from his age at the time the priority date became current, making the alien 22.
d) Protection Extends to DV Applicants
The Act also applies to derivative DV applicants. Because the DV process differs substantially from the preference process, however, treatment of DV derivatives will also be somewhat different. For the purpose of calculating the period during which the "petition is pending", the period between the first day of the DV mail-in application period for the program year in which the principal alien has qualified and the date on the letter notifying the principal applicant that his/her application has been selected (congratulatory letter). That period will be subtracted from the derivative alien's age on the date the visa becomes available to the principal alien. The date the visa becomes available will be the first day on which the Department determines the principal alien's selection number becomes eligible for visa processing.
The Department interprets V visa applicants as ineligible for child status protection under this section.
e) Philippines Considered in Age-Out Protection
The Act addresses the problem encountered by Philippine F2-B applicants whose parents naturalize. Automatic conversion from F2B to F1 at the time of their parent's naturalization disadvantages these beneficiaries because the cutoff date for Philippine F1s is earlier than the cutoff date for Philippine F2Bs. Although this section continues to allow for the automatic conversion of preference categories when a parent naturalizes, it also permits the son/daughter beneficiary to make a request to the Attorney General that such conversion not occur. At this time, it is not known how this request to the Attorney General will be made or what formalities will be required.
The following will illustrate what a beneficiary would consider before deciding whether to opt-out of an automatic conversion from second to first preference:
1. Assume that for August 2002, the F2B cutoff date for French unmarried sons and daughters of Legal Permanent Residents is December 8, 1993 and the F1 cutoff date for French unmarried sons and daughters of American citizens is July 1, 1996. Thus, if a LPR files a Form I-130 for his 14-year old, unmarried French son and then naturalizes, the son's immigrant category would automatically convert from the second preference to the first preference. In this example, this would work to the advantage of the beneficiary and he would likely not request that the automatic conversion be prevented in his case.
2. In the cases involving Filipino unmarried sons or daughters, the outcome of automatic conversion from second to first preference is very different. For example, for August 2002, the F2 cutoff date for Filipino unmarried sons and daughters of Legal Permanent Residents is December 3, 1993, but the F1 cutoff date for Filipino unmarried sons and daughters of American Citizens is November 1, 1989. In this instance, the son would likely request that the automatic conversion from second to first preference not occur.
The new law radically changes the process for determining whether a child has "aged out" for the purpose of the issuance of visas and the adjustment of status of aliens in most immigrant categories and is designed to benefit the immigrant community in general and preserve the concept of "family unity" in particular.