President Signs Age-Out Protection Legislation

Cite as "Posted on AILA InfoNet at Doc. No. 02080740 (Aug. 7, 2002) ."

President Bush on Tuesday, August 6, signed the Child Status Protection Act.  This new law addresses the problem of minor children losing their eligibility for certain immigration benefits as a result of INS processing delays.  Prior to the passage of this law, a child’s eligibility to receive a visa or be part of his or her parent’s application was based on the child’s age at the time that the alien relative petition was approved, not the time the petition was filed.  Because of enormous backlogs and processing delays, many children turned 21 before the INS adjudicated the petition.   In such cases, the child “ages-out” and is ineligible to receive an immediate relative visa or is no longer considered to be part of the parent’s application.  The child’s 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 “Child Status Protection Act” (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 “immediate relative child” (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 new law 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 parents’ naturalization.  In the latter, the alien beneficiary’s 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 new law provides age-out protection to alien children who accompany or follow to join parents who have filed for asylum or refugee status.   Finally, the new law 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.