Child Status Protection Act (Passed by Both House and Senate)
H.R.1209
www.immigration-law.com
One Hundred Seventh Congress of the United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Wednesday,
the twenty-third day of January, two thousand and two
An Act
To amend the Immigration and Nationality Act to determine whether an alien is a child, for purposes of classification as an immediate relative, based on the age of the alien on the date the classification petition with respect to the alien is filed, and for other purposes.
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Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Child Status Protection Act'.
SEC. 2. USE OF AGE ON PETITION FILING DATE, PARENT'S NATURALIZATION DATE, OR MARRIAGE TERMINATION DATE, IN DETERMINING STATUS AS IMMEDIATE RELATIVE.
Section 201 of the Immigration and Nationality Act (8 U.S.C. 1151) is amended by adding at the end the following:
`(f) RULES FOR DETERMINING WHETHER CERTAIN ALIENS ARE IMMEDIATE RELATIVES-
`(1) AGE ON PETITION FILING DATE- Except as provided in paragraphs (2) and (3), for purposes of subsection (b)(2)(A)(i), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using the age of the alien on the date on which the petition is filed with the Attorney General under section 204 to classify the alien as an immediate relative under subsection (b)(2)(A)(i).
`(2) AGE ON PARENT'S NATURALIZATION DATE- In the case of a petition under section 204 initially filed for an alien child's classification as a family-sponsored immigrant under section 203(a)(2)(A), based on the child's parent being lawfully admitted for permanent residence, if the petition is later converted, due to the naturalization of the parent, to a petition to classify the alien as an immediate relative under subsection (b)(2)(A)(i), the determination described in paragraph (1) shall be made using the age of the alien on the date of the parent's naturalization.
`(3) AGE ON MARRIAGE TERMINATION DATE- In the case of a petition under section 204 initially filed for an alien's classification as a family-sponsored immigrant under section 203(a)(3), based on the alien's being a married son or daughter of a citizen, if the petition is later converted, due to the legal termination of the alien's marriage, to a petition to classify the alien as an immediate relative under subsection (b)(2)(A)(i) or as an unmarried son or daughter of a citizen under section 203(a)(1), the determination described in paragraph (1) shall be made using the age of the alien on the date of the termination of the marriage.'.
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SEC. 3. TREATMENT OF CERTAIN UNMARRIED SONS AND DAUGHTERS SEEKING STATUS AS FAMILY-SPONSORED, EMPLOYMENT-BASED, AND DIVERSITY IMMIGRANTS.
Section 203 of the Immigration and Nationality Act (8 U.S.C. 1153) is amended by adding at the end the following:
`(h) RULES FOR DETERMINING WHETHER CERTAIN ALIENS ARE CHILDREN-
`(1) IN GENERAL- For purposes of subsections (a)(2)(A) and (d), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using--
`(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d), the date on which an immigrant visa number became available for the alien's parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability; reduced by
`(B) the number of days in the period during which the applicable petition described in paragraph (2) was pending.
`(2) PETITIONS DESCRIBED- The petition described in this paragraph is--
`(A) with respect to a relationship described in subsection (a)(2)(A), a petition filed under section 204 for classification of an alien child under subsection (a)(2)(A); or
`(B) with respect to an alien child who is a derivative beneficiary under subsection (d), a petition filed under section 204 for classification of the alien's parent under subsection (a), (b), or (c).
`(3) RETENTION OF PRIORITY DATE- If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.'.
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SEC. 4. USE OF AGE ON PARENT'S APPLICATION FILING DATE IN DETERMINING ELIGIBILITY FOR ASYLUM.
Section 208(b)(3) of the Immigration and Nationality Act (8 U.S.C. 1158(b)(3)) is amended to read as follows:
`(3) TREATMENT OF SPOUSE AND CHILDREN-
`(A) IN GENERAL- A spouse or child (as defined in section 101(b)(1) (A), (B), (C), (D), or (E)) of an alien who is granted asylum under this subsection may, if not otherwise eligible for asylum under this section, be granted the same status as the alien if accompanying, or following to join, such alien.
`(B) CONTINUED CLASSIFICATION OF CERTAIN ALIENS AS CHILDREN- An unmarried alien who seeks to accompany, or follow to join, a parent granted asylum under this subsection, and who was under 21 years of age on the date on which such parent applied for asylum under this section, shall continue to be classified as a child for purposes of this paragraph and section 209(b)(3), if the alien attained 21 years of age after such application was filed but while it was pending.'.
SEC. 5. USE OF AGE ON PARENT'S APPLICATION FILING DATE IN DETERMINING ELIGIBILITY FOR ADMISSION AS REFUGEE.
Section 207(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1157(c)(2)) is amended--
(1) by striking `(2)' and inserting `(2)(A)'; and
(2) by adding at the end the following:
`(B) An unmarried alien who seeks to accompany, or follow to join, a parent granted admission as a refugee under this subsection, and who was under 21 years of age on the date on which such parent applied for refugee status under this section, shall continue to be classified as a child for purposes of this paragraph, if the alien attained 21 years of age after such application was filed but while it was pending.'.
SEC. 6. TREATMENT OF CLASSIFICATION PETITIONS FOR UNMARRIED SONS AND DAUGHTERS OF NATURALIZED CITIZENS.
Section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) is amended by adding at the end the following:
`(k) PROCEDURES FOR UNMARRIED SONS AND DAUGHTERS OF CITIZENS-
`(1) IN GENERAL- Except as provided in paragraph (2), in the case of a petition under this section initially filed for an alien unmarried son or daughter's classification as a family-sponsored immigrant under section 203(a)(2)(B), based on a parent of the son or daughter being an alien lawfully admitted for permanent residence, if such parent subsequently becomes a naturalized citizen of the United States, such petition shall be converted to a petition to classify the unmarried son or daughter as a family-sponsored immigrant under section 203(a)(1).
`(2) EXCEPTION- Paragraph (1) does not apply if the son or daughter files with the Attorney General a written statement that he or she elects not to have such conversion occur (or if it has occurred, to have such conversion revoked). Where such an election has been made, any determination with respect to the son or daughter's eligibility for admission as a family-sponsored immigrant shall be made as if such naturalization had not taken place.
`(3) PRIORITY DATE- Regardless of whether a petition is converted under this subsection or not, if an unmarried son or daughter described in this subsection was assigned a priority date with respect to such petition before such naturalization, he or she may maintain that priority date.
`(4) CLARIFICATION- This subsection shall apply to a petition if it is properly filed, regardless of whether it was approved or not before such naturalization.'.
SEC. 7. IMMIGRATION BENEFITS FOR CERTAIN ALIEN CHILDREN NOT AFFECTED.
Section 204(a)(1)(D) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(D)) is amended by adding at the end the following new clause:
`(iii) Nothing in the amendments made by the Child Status Protection Act shall be construed to limit or deny any right or benefit provided under this subparagraph.'.
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SEC. 8. EFFECTIVE DATE.
The amendments made by this Act shall take effect on the date of the enactment of this Act and shall apply to any alien who is a derivative beneficiary or any other beneficiary of--
(1) 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;
(2) 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
(3) an application pending before the Department of Justice or the Department of State on or after such date.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.
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--------------------------------------------------------------------------------
Selective Summary of Age-Out Act
The purpose of this new legislation is to keep certain aliens continuously eligible for immigrant benefits if they otherwise become ineligible for the immigration benefits because of their reaching 21 years of age pending the proceedings. The following summarizes selective provisions to show the readers the parameters of this legislation.
Unmarried Children of U.S. Citizen Younger than 21 Years of Age: The U.S. citizen can file "immediate relative" petition. Currently, the child must "acquire" a green card before he/she reaches 21 years of age either through consular proceeding or 485 adjustment proceeding. Should the child reach 21 years of age before the permanent resident status is approved, currently such alien turns into a status of "Son" or "Daughter" rather than a "Child" and has to go through either Family First Preference (F1) if remains unmarried or Family Third Preference (F3) if married. These preference categories are currently heavily backlogged in the Visa Bulletin. The Age-Out Act provides that for the purpose of immediate relative petition, such son or daughter remains eligible for the immediate relative status inasmuch as he/she was younger than 21 years of age at the time the U.S. citizen parent filed immigrant petition on his/her behalf. In other words, the cut-off date for immediate relative immigration benefit is "Parent's Petition Filing Date" rather than green card approval date. Accordingly, if the U.S. citizen filed immediate relative petition for his/her child of 20 years or younger, even if the child reaches 21 years pending the proceedings, the child will get immigrant status under the classification of "immediate relative" and not be subject to immigrant visa quota.
Unmarried Children of Permanent Resident Younger Than 21 Years of Age Converting from F2A Petition Status to Immediate Relative Status by the Parent's Naturalization: This is a situation where a permanent resident parent filed a F2A immigrant petition for unmarried child of 20 years or younger. While the child is either waiting for the priority date or going through adjustment status, the parent obtains a citizenship through the naturalization process. Currently, if the child reaches 21 years of age before his/her green card is approved, his/her status is converted from F2A Preference category to F1 category and the child has to wait a long time to reach his/her priority date. Under the new law, the cutoff date for age 21 is determined by the date of parent's naturalization. Consequently, even if the child reaches 21 years of age, the child will be able to convert to Immediate Relative category inasmuch as he/she was younger than 21 years of age at the time the petitioning parent obtained the citizenship through naturalization. The benefit is obvious since he/she will be able to get a green card without being subject to immigrant quota.
Married Children of U.S. Citizen and Affect of His/her Marriage Termination: If the U.S. citizen parent filed F3 immigrant petition on behalf of a married child who is 20 years or younger, his/her case is converted to F-1 even if he/she becomes unmarried by termination of marriage inasmuch as he/she reaches 21 years of age. Under the new law, the cutoff date is determined for the purpose of conversion of categories by the date of termination of marriage. Accordingly, if he/she was 20 or younger at the time of terminationa of his/her marriage, his case will be converted to the Immediate Relative status and he/she will be able to get green fairly quickly even after he/she 21 years of age since he/she will not be subject to the immigrant quota.
Unmarried Children of Permanent Resident Pending F2A Petition and Aging Out: Under the current law, should such child reach 21 years of age while waiting for priority date or adjustment of status, his/her status is automatically converted to F2B. The waiting time for F2B categories is much longer than F2A. Under the new law, the cutoff date will be determined by the date when visa number or priority date becomes available. Accordingly, such F2A waiter will be able to obtain a green card under F2A category even after he/she reaches 21 years of age inasmuch as he/she aapplies for a green card within 1 year from the date when the priority date becomes available in the Visa Bulletin. In counting the child's age, the number of days spent for petition approval is taken out. For instance, if the I-130 petition for the child took one year and at the time the visa number(priority date) becomes available for F-2A classification for the alien child, he/she has already reached 21 years of age, the child is still considered "child" for the purpose of eligibility for F-2A classification immigration and the child can apply for either I-485 adjustment of status or immigrant visa.
Accompanying or Following-To-Join Derivative Children Beneficiary of Preference Family Categories or Employment-Based Categories or Immigration Lottery Category: Currently, if a unmarried child of 20 years or younger applies a green card as a dependant child of a parent who applies for green card through preference family petition or employment-based petition or immigration lottery registration, the child should complete the green card before he/she reaches 21 years of age. Otherwise, the child is unable to apply for the green card as a dependant. Under the new law, the cutoff date is determined by the date when the parent's priority date becomes available in the Visa Bulletin. Accordingly, such child will be able to obtain a green card as an accompanying beneficiary or a following-to-join beneficiary even after he/she reaches 21 years of age inasmuch as he/she applies for a green card within 1 year from the date when the priority date becomes available in the Visa Bulltin. In counting the child's age, the number of days spent for the parent's petition approval is taken out. For instance, if the I-130 petition for the parent (in family-based immigrant petition) or the I-140 petition for the parent (in family-based immigrant petiton) took one year and at the time the visa number(priority date) becomes available for the parent, the child has already reached 21 years of age, the child is still considered "child" for the purpose of eligibility for immigration benefit as a derivative dependent child beneficiary and such child can apply for either I-485 adjustment of status or immigrant vis even if the child is older than 21 years of age.
Accompanying or Following-To-Join Children of Asylum Applicant or Refugee Parent: Again under the current law, once a child of an asylum or refugee parent reaches 21 years of age, that child becomes ineligible for asylum and refugee immigrant benefits. Under the new law, the cutoff date is determined by the filing date of asylum or refugee application by the parent. If such child reaches 21 years after the parent filed asylum application and while it is still pending, the child will remain eligible for the benefit as a dependant. Should the child reach 21 years of age after the parent's asylum is granted, however, it appears that the child may not be eligible for the dependant benefits.
Effective Date of the Law and Eligible Alien Children: This legislation becomes effective on the date the President signs it. As a savings clause, the legislation provides three categories of aliens who will be eligible for the benefits of this law:
The alien whose immigrant petition was approved before the effective date of this law and either immigrant visa or 485 adjustment of status proceeding is still pending at the time of effective date of the law.
The alien for whom an immigrant petition is pending on or after the effective date of the law.
The alien whose application is pending on or after the effective date of the law.
The AILA is expected to release a summary soon. People should not rely on the foregoing summary as the law since it is a "selective" summary and "outline." People should wait until either the INS or other authoritative entities releases the summary. This law firm and lawyers will not be responsible for the consequences of people's reliance on this summary.
H.R.1209
www.immigration-law.com
One Hundred Seventh Congress of the United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Wednesday,
the twenty-third day of January, two thousand and two
An Act
To amend the Immigration and Nationality Act to determine whether an alien is a child, for purposes of classification as an immediate relative, based on the age of the alien on the date the classification petition with respect to the alien is filed, and for other purposes.
www.immigration-law.com
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Child Status Protection Act'.
SEC. 2. USE OF AGE ON PETITION FILING DATE, PARENT'S NATURALIZATION DATE, OR MARRIAGE TERMINATION DATE, IN DETERMINING STATUS AS IMMEDIATE RELATIVE.
Section 201 of the Immigration and Nationality Act (8 U.S.C. 1151) is amended by adding at the end the following:
`(f) RULES FOR DETERMINING WHETHER CERTAIN ALIENS ARE IMMEDIATE RELATIVES-
`(1) AGE ON PETITION FILING DATE- Except as provided in paragraphs (2) and (3), for purposes of subsection (b)(2)(A)(i), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using the age of the alien on the date on which the petition is filed with the Attorney General under section 204 to classify the alien as an immediate relative under subsection (b)(2)(A)(i).
`(2) AGE ON PARENT'S NATURALIZATION DATE- In the case of a petition under section 204 initially filed for an alien child's classification as a family-sponsored immigrant under section 203(a)(2)(A), based on the child's parent being lawfully admitted for permanent residence, if the petition is later converted, due to the naturalization of the parent, to a petition to classify the alien as an immediate relative under subsection (b)(2)(A)(i), the determination described in paragraph (1) shall be made using the age of the alien on the date of the parent's naturalization.
`(3) AGE ON MARRIAGE TERMINATION DATE- In the case of a petition under section 204 initially filed for an alien's classification as a family-sponsored immigrant under section 203(a)(3), based on the alien's being a married son or daughter of a citizen, if the petition is later converted, due to the legal termination of the alien's marriage, to a petition to classify the alien as an immediate relative under subsection (b)(2)(A)(i) or as an unmarried son or daughter of a citizen under section 203(a)(1), the determination described in paragraph (1) shall be made using the age of the alien on the date of the termination of the marriage.'.
www.immigration-law.com
SEC. 3. TREATMENT OF CERTAIN UNMARRIED SONS AND DAUGHTERS SEEKING STATUS AS FAMILY-SPONSORED, EMPLOYMENT-BASED, AND DIVERSITY IMMIGRANTS.
Section 203 of the Immigration and Nationality Act (8 U.S.C. 1153) is amended by adding at the end the following:
`(h) RULES FOR DETERMINING WHETHER CERTAIN ALIENS ARE CHILDREN-
`(1) IN GENERAL- For purposes of subsections (a)(2)(A) and (d), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using--
`(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d), the date on which an immigrant visa number became available for the alien's parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability; reduced by
`(B) the number of days in the period during which the applicable petition described in paragraph (2) was pending.
`(2) PETITIONS DESCRIBED- The petition described in this paragraph is--
`(A) with respect to a relationship described in subsection (a)(2)(A), a petition filed under section 204 for classification of an alien child under subsection (a)(2)(A); or
`(B) with respect to an alien child who is a derivative beneficiary under subsection (d), a petition filed under section 204 for classification of the alien's parent under subsection (a), (b), or (c).
`(3) RETENTION OF PRIORITY DATE- If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.'.
www.immigration-law.com
SEC. 4. USE OF AGE ON PARENT'S APPLICATION FILING DATE IN DETERMINING ELIGIBILITY FOR ASYLUM.
Section 208(b)(3) of the Immigration and Nationality Act (8 U.S.C. 1158(b)(3)) is amended to read as follows:
`(3) TREATMENT OF SPOUSE AND CHILDREN-
`(A) IN GENERAL- A spouse or child (as defined in section 101(b)(1) (A), (B), (C), (D), or (E)) of an alien who is granted asylum under this subsection may, if not otherwise eligible for asylum under this section, be granted the same status as the alien if accompanying, or following to join, such alien.
`(B) CONTINUED CLASSIFICATION OF CERTAIN ALIENS AS CHILDREN- An unmarried alien who seeks to accompany, or follow to join, a parent granted asylum under this subsection, and who was under 21 years of age on the date on which such parent applied for asylum under this section, shall continue to be classified as a child for purposes of this paragraph and section 209(b)(3), if the alien attained 21 years of age after such application was filed but while it was pending.'.
SEC. 5. USE OF AGE ON PARENT'S APPLICATION FILING DATE IN DETERMINING ELIGIBILITY FOR ADMISSION AS REFUGEE.
Section 207(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1157(c)(2)) is amended--
(1) by striking `(2)' and inserting `(2)(A)'; and
(2) by adding at the end the following:
`(B) An unmarried alien who seeks to accompany, or follow to join, a parent granted admission as a refugee under this subsection, and who was under 21 years of age on the date on which such parent applied for refugee status under this section, shall continue to be classified as a child for purposes of this paragraph, if the alien attained 21 years of age after such application was filed but while it was pending.'.
SEC. 6. TREATMENT OF CLASSIFICATION PETITIONS FOR UNMARRIED SONS AND DAUGHTERS OF NATURALIZED CITIZENS.
Section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) is amended by adding at the end the following:
`(k) PROCEDURES FOR UNMARRIED SONS AND DAUGHTERS OF CITIZENS-
`(1) IN GENERAL- Except as provided in paragraph (2), in the case of a petition under this section initially filed for an alien unmarried son or daughter's classification as a family-sponsored immigrant under section 203(a)(2)(B), based on a parent of the son or daughter being an alien lawfully admitted for permanent residence, if such parent subsequently becomes a naturalized citizen of the United States, such petition shall be converted to a petition to classify the unmarried son or daughter as a family-sponsored immigrant under section 203(a)(1).
`(2) EXCEPTION- Paragraph (1) does not apply if the son or daughter files with the Attorney General a written statement that he or she elects not to have such conversion occur (or if it has occurred, to have such conversion revoked). Where such an election has been made, any determination with respect to the son or daughter's eligibility for admission as a family-sponsored immigrant shall be made as if such naturalization had not taken place.
`(3) PRIORITY DATE- Regardless of whether a petition is converted under this subsection or not, if an unmarried son or daughter described in this subsection was assigned a priority date with respect to such petition before such naturalization, he or she may maintain that priority date.
`(4) CLARIFICATION- This subsection shall apply to a petition if it is properly filed, regardless of whether it was approved or not before such naturalization.'.
SEC. 7. IMMIGRATION BENEFITS FOR CERTAIN ALIEN CHILDREN NOT AFFECTED.
Section 204(a)(1)(D) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(D)) is amended by adding at the end the following new clause:
`(iii) Nothing in the amendments made by the Child Status Protection Act shall be construed to limit or deny any right or benefit provided under this subparagraph.'.
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SEC. 8. EFFECTIVE DATE.
The amendments made by this Act shall take effect on the date of the enactment of this Act and shall apply to any alien who is a derivative beneficiary or any other beneficiary of--
(1) 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;
(2) 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
(3) an application pending before the Department of Justice or the Department of State on or after such date.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.
www.immigration-law.com
--------------------------------------------------------------------------------
Selective Summary of Age-Out Act
The purpose of this new legislation is to keep certain aliens continuously eligible for immigrant benefits if they otherwise become ineligible for the immigration benefits because of their reaching 21 years of age pending the proceedings. The following summarizes selective provisions to show the readers the parameters of this legislation.
Unmarried Children of U.S. Citizen Younger than 21 Years of Age: The U.S. citizen can file "immediate relative" petition. Currently, the child must "acquire" a green card before he/she reaches 21 years of age either through consular proceeding or 485 adjustment proceeding. Should the child reach 21 years of age before the permanent resident status is approved, currently such alien turns into a status of "Son" or "Daughter" rather than a "Child" and has to go through either Family First Preference (F1) if remains unmarried or Family Third Preference (F3) if married. These preference categories are currently heavily backlogged in the Visa Bulletin. The Age-Out Act provides that for the purpose of immediate relative petition, such son or daughter remains eligible for the immediate relative status inasmuch as he/she was younger than 21 years of age at the time the U.S. citizen parent filed immigrant petition on his/her behalf. In other words, the cut-off date for immediate relative immigration benefit is "Parent's Petition Filing Date" rather than green card approval date. Accordingly, if the U.S. citizen filed immediate relative petition for his/her child of 20 years or younger, even if the child reaches 21 years pending the proceedings, the child will get immigrant status under the classification of "immediate relative" and not be subject to immigrant visa quota.
Unmarried Children of Permanent Resident Younger Than 21 Years of Age Converting from F2A Petition Status to Immediate Relative Status by the Parent's Naturalization: This is a situation where a permanent resident parent filed a F2A immigrant petition for unmarried child of 20 years or younger. While the child is either waiting for the priority date or going through adjustment status, the parent obtains a citizenship through the naturalization process. Currently, if the child reaches 21 years of age before his/her green card is approved, his/her status is converted from F2A Preference category to F1 category and the child has to wait a long time to reach his/her priority date. Under the new law, the cutoff date for age 21 is determined by the date of parent's naturalization. Consequently, even if the child reaches 21 years of age, the child will be able to convert to Immediate Relative category inasmuch as he/she was younger than 21 years of age at the time the petitioning parent obtained the citizenship through naturalization. The benefit is obvious since he/she will be able to get a green card without being subject to immigrant quota.
Married Children of U.S. Citizen and Affect of His/her Marriage Termination: If the U.S. citizen parent filed F3 immigrant petition on behalf of a married child who is 20 years or younger, his/her case is converted to F-1 even if he/she becomes unmarried by termination of marriage inasmuch as he/she reaches 21 years of age. Under the new law, the cutoff date is determined for the purpose of conversion of categories by the date of termination of marriage. Accordingly, if he/she was 20 or younger at the time of terminationa of his/her marriage, his case will be converted to the Immediate Relative status and he/she will be able to get green fairly quickly even after he/she 21 years of age since he/she will not be subject to the immigrant quota.
Unmarried Children of Permanent Resident Pending F2A Petition and Aging Out: Under the current law, should such child reach 21 years of age while waiting for priority date or adjustment of status, his/her status is automatically converted to F2B. The waiting time for F2B categories is much longer than F2A. Under the new law, the cutoff date will be determined by the date when visa number or priority date becomes available. Accordingly, such F2A waiter will be able to obtain a green card under F2A category even after he/she reaches 21 years of age inasmuch as he/she aapplies for a green card within 1 year from the date when the priority date becomes available in the Visa Bulletin. In counting the child's age, the number of days spent for petition approval is taken out. For instance, if the I-130 petition for the child took one year and at the time the visa number(priority date) becomes available for F-2A classification for the alien child, he/she has already reached 21 years of age, the child is still considered "child" for the purpose of eligibility for F-2A classification immigration and the child can apply for either I-485 adjustment of status or immigrant visa.
Accompanying or Following-To-Join Derivative Children Beneficiary of Preference Family Categories or Employment-Based Categories or Immigration Lottery Category: Currently, if a unmarried child of 20 years or younger applies a green card as a dependant child of a parent who applies for green card through preference family petition or employment-based petition or immigration lottery registration, the child should complete the green card before he/she reaches 21 years of age. Otherwise, the child is unable to apply for the green card as a dependant. Under the new law, the cutoff date is determined by the date when the parent's priority date becomes available in the Visa Bulletin. Accordingly, such child will be able to obtain a green card as an accompanying beneficiary or a following-to-join beneficiary even after he/she reaches 21 years of age inasmuch as he/she applies for a green card within 1 year from the date when the priority date becomes available in the Visa Bulltin. In counting the child's age, the number of days spent for the parent's petition approval is taken out. For instance, if the I-130 petition for the parent (in family-based immigrant petition) or the I-140 petition for the parent (in family-based immigrant petiton) took one year and at the time the visa number(priority date) becomes available for the parent, the child has already reached 21 years of age, the child is still considered "child" for the purpose of eligibility for immigration benefit as a derivative dependent child beneficiary and such child can apply for either I-485 adjustment of status or immigrant vis even if the child is older than 21 years of age.
Accompanying or Following-To-Join Children of Asylum Applicant or Refugee Parent: Again under the current law, once a child of an asylum or refugee parent reaches 21 years of age, that child becomes ineligible for asylum and refugee immigrant benefits. Under the new law, the cutoff date is determined by the filing date of asylum or refugee application by the parent. If such child reaches 21 years after the parent filed asylum application and while it is still pending, the child will remain eligible for the benefit as a dependant. Should the child reach 21 years of age after the parent's asylum is granted, however, it appears that the child may not be eligible for the dependant benefits.
Effective Date of the Law and Eligible Alien Children: This legislation becomes effective on the date the President signs it. As a savings clause, the legislation provides three categories of aliens who will be eligible for the benefits of this law:
The alien whose immigrant petition was approved before the effective date of this law and either immigrant visa or 485 adjustment of status proceeding is still pending at the time of effective date of the law.
The alien for whom an immigrant petition is pending on or after the effective date of the law.
The alien whose application is pending on or after the effective date of the law.
The AILA is expected to release a summary soon. People should not rely on the foregoing summary as the law since it is a "selective" summary and "outline." People should wait until either the INS or other authoritative entities releases the summary. This law firm and lawyers will not be responsible for the consequences of people's reliance on this summary.
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