Age-Out Legislation Pending
Posted Jun 07, 2002

There is legislation pending in both the House and Senate that would ameliorate the problems faced when children "age out" while their applications for immigration benefits are pending. Aging out is a significant problem in immigration cases. Unmarried children are eligible to be part of their parents' applications and receive derivative immigration benefits up to age 21. Currently, eligibility is measured as of the time of approval, not the time of filing. Therefore, INS delays can result in the child's losing his or her eligibility for the requested status.

A common example is in the employment-based green card case. If the parent has an approved labor certification and I-140 (Immigrant Petition for Alien Worker), s/he can file for Adjustment of Status to Permanent Residence (or consular processing for an immigrant visa, if outside of the U.S.). The beneficiary's spouse and any unmarried, minor (under 21) children are also eligible for the green card on a derivative basis. If the application is approved before a child reaches 21, s/he will be a permanent resident. However, if the application is not acted upon prior to the child's turning 21, s/he will not be eligible for approval based on that petition. In most cases the child, at this point, would be out of status. The permanent resident parents can file a family-based petition for the child as the unmarried son or daughter of a permanent resident but this category is subject to numerical limitations and many years of waiting. In the interim, the child also is most likely out of status which, depending upon filing dates, may make the child ineligible for adjustment of status, even after waiting for many years.

The legislative solution offered in the Senate is S. 672, the Child Status Protection Act. For children of U.S. citizens (i.e. family-based cases), the bill would allow them to remain eligible based on the child's age at the time the application was filed, rather than the date it was acted upon. For a child of newly naturalized citizens, with a case pending, eligibility will be determined based on age at the time the parents naturalize. For a child of permanent residents, or one who is accompanying or following to join from outside the U.S., eligibility would be determined based on the date a visa became available but only if s/he seeks permanent resident status within one year of the availability. The House version of this bill, H.R. 1209, is more limited; offering protection only to the children of U.S. citizens who aged out during the process of applying for permanent resident status based on family petitions.

Passage of legislation in this area, if sufficiently broad, will eliminate what is a significant and difficult problem for immigrants with older children. The aging-out problem can be a cruel twist of fate, with the timing of the 21^st birthday making a difference between permanent resident status and unlawful status. While the INS will expedite cases in which "aging out" is an issue, their ability to do so is limited. With additional security concerns and new background checks causing further delays in cases, the problem will increase. Security concerns also dictate that expedited processing is not appropriate in some instances. We will continue to follow and support legislation that addresses "aging out" issues.