DOS on USA PATRIOT Act "Aging out" Provisions – Nov. 2001
Posted Dec 07, 2001

On Oct. 12, 2001 the MurthyBulletin and MurthyDotCom we published a summary entitled, PATRIOT Act of 2001 – A Bill Introduced in U.S. House. The U.S. Congress passed the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001" ("PATRIOT Act"), on October 29, 2001, in response to the September 11^th attacks. Although most of the provisions of the PATRIOT Act deal with restricting rights of suspected terrorists, there are some ameliorating provisions. One such provision extends immigration benefits to certain applicants who "aged out" during September 2001 or will age out shortly thereafter. The benefits are extended only to those applicants who filed a petition or application on or before September 11, 2001. These provisions were clarified in a recent cable from the U.S. Department of State (DOS). Please note that all DOS cables apply to consular processing abroad and the INS Memos and INS regulations govern the INS interpretations of laws within the U.S. Although the provisions in the PATRIOT Act and the DOS cable will only apply to a small group of immigrants, we explain it in this NewsBrief in our MurthyBulletin and for MurthyDotCom readers, since the impact to that limited group is significant.

"Aging out" refers to an applicant's turning 21 years of age when no longer considered a "child" for immigration purposes. Merely by turning 21 years old a person could suffer adverse immigration consequences as eligibility to immigrate as part of the parent's case is only permitted up to that age. For example, if a parent obtains permanent residence through an employment-based case, her children, if in the U.S. and under 21, would be eligible to apply for and obtain permanent residence along with the parent. (A child residing outside the U.S. would have to wait for approval of the parent's case and then complete a consular processing for immigrant visa, as a following to join case, still in the same category and with the same priority date as the parent.) In either instance, if the child reaches age 21 prior to approval of the parent's case, such a "child" is no longer eligible to immigrant with the parent. The parent will have to file a separate, family preference petition for the son or daughter. The son or daughter will not be eligible for permanent residence for many years based upon the parent's family-based petition. Similarly, spouses and children of H-1 and F-1 nonimmigrants are eligible for H-4 and F-2 visas. The children are only eligible for the H-4 or F-2 status until they reach age twenty-one.

The PATRIOT Act extends the "aging out" date by 90 days for those applicants who turned 21 in September 2001. The provision will effectively end on December 29, 2001. While time is limited, the INS and U.S. Consulates handle "aging out" cases on an expedited basis, if the matter is brought to their attention. That is, they will not specifically look for children who are aging out, but they will process cases more quickly where expedited "aging out" processing is requested and they have the time and resources to devote to such a case.

The PATRIOT Act also extends the deadline for applicants whose birthdays occurred after September 2001. These individuals are considered to be children for 45 days after their 21^st birthdays, provided their initial petitions or applications were filed on or before September 11, 2001. There is no end date for this provision, as it will end after this limited group of applicants is processed.

Parents with children in this age range should have their cases carefully reviewed with respect to the "aging out" issue and the potential extension of time under the PATRIOT Act. This is an unusual reprieve that should not be overlooked.

Although the provisions of the PATRIOT Act apply to immigration cases both within the U.S. and at the U.S. Consulates abroad, the information provided by the DOS is limited to overseas visa processing and does not address applications for change or adjustment of status in the U.S. The DOS cable states that the aging-out extension provisions will be applied to both immigrant and nonimmigrant visa applications. It does not apply to children of Diversity Lottery visa recipients. Therefore, the DOS has stated that it will process "children" for H-4, K-2, K-4, V and other derivative nonimmigrant visas, even though the "child's" legal immigration status in those visa categories will be quite brief. They will be advised that their status will end after they are no longer considered to be "children" under the Immigration and Nationality Act. That is, their status will end at 21 years plus 90 days or 21 years plus 45 days, under the provisions explained above, unless they are eligible for an alternative status.

The DOS has significantly limited the qualified, overseas applicants by narrowing the definition of "filed an application" on or before September 11, 2001. They are limiting their processing to individuals who filed either nonimmigrant visa application Form OF-156 or who personally appeared before a consular officer for processing of their immigrant visa application Form OF-230. According to the DOS cable, the filing of the OF-230 alone, or the filing of an application with INS is not sufficient. According to the cable, the INS has not yet determined how they will implement the PATRIOT Act for cases that have already aged out. Given the uncertainties in the precise application of the provisions, and the limited time frames allowed, it is likely to be worthwhile to attempt to pursue all applications which might arguably be eligible to benefit under the PATRIOT Act provisions. This effort may ultimately prove beneficial if the interpretation changes or is subject to a Court challenge.