“Aging Out” Children to Benefit from Child Status Protection Act
August 22, 2002

On August 7, 2002, President Bush signed into law the Child Status Protection Act. Although many aspects of this new piece of legislation remain unclear, the general aim of this law is to protect the immigration benefits of children under petition by their U.S. immigrant or citizen parents who have been, or will be, penalized because they turn 21 years of age. In theory the law takes effect immediately and in some cases will apply retroactively, although the publication of implementing regulations and the dissemination of guiding memoranda from INS headquarters to field offices will surely not happen overnight.

Highlights of the Child Status Protection Act

  1. If a child is petitioned for immigration benefits by their U.S. citizen parent, the age of the child at the time the petition is filed now governs, as opposed to the age of the child at the time he/she ultimately applies for their immigrant visa or if in the U.S., adjustment of status. Therefore, children who are under 21 years of age at the time their U.S. citizen parent petitions them, will in most cases forever be considered under 21 years of age for purposes of immigration law and the awarding of immigration benefits.
  2. If a petitioning parent is a lawful permanent resident at the time he/she petitions their child and later becomes a U.S. citizen, the age of the child at the time the parent naturalizes will be the operative age for purposes of awarding the child immigration benefits.
  3. Many children who were included in petitions filed on behalf of one of their parents by that parent’s relative or employer, but turned 21 years of age while awaiting visa availability, may now be able to claim immigration benefits they were previously denied under the old law. A complicated formula to determine who is eligible in such contexts is included the new law.

One other highlight which will have a particularly profound effect on the Filipino community is the provision that now allows for petitioning parents to elect NOT to have their Family 2nd Preference B petitions on behalf of their unmarried adult children automatically converted to the Family 1st Preference category after they naturalize as U.S. citizens. This provision will be of tremendous benefit to those U.S. parents who unknowingly caused 5 + years of additional delay to the processing of their children’s immigrant visa processing by becoming U.S. citizens – since many petitioning parents fail to be aware of the anomaly effecting only Filipinos, where the wait for a visa as the adult child of a U.S. citizen is significantly longer than the wait for a visa as the child of a lawful permanent resident. Under the new law, such petitioning parents may request that their visa petitions not be automatically converted to First Preference, and a determination of their child’s visa eligibility will be made as if the parent had never become a U.S. citizen. Importantly, the language of the new legislation appears allow for retroactive application, with naturalized U.S. citizen parents having an avenue to request that previous conversions of their petitions from Family 2B preference, to Family 1st Preference be undone.

As stated, the actual language of the legislation is confusing, and no doubt, the implementation of a procedure, including the training of INS decision-makers, to allow the law to take effect will require weeks, if not months, of bureaucratic hustle. In any case, the enactment of the legislation is good news for families seeking to be reunited, or remain united, in the U.S.

Developments regarding the implementation of this legislation will be featured in this column as more details become available.

Copyright © 2002-2008, By Law Offices of Richard Hanus, Chicago, Illinois