Age-Out Problems under the Interplay of the Rule of Concurrent Filing and "Child Status Protection Act"

"Child Status Protection Act", effective August 6, 2002, 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, in Employment-Based Immigration situation, a child's eligibility to be part of his or her parent's application as a derivative beneficiary was based on the child's age at the time that the alien I-485 was approved. Because of enormous backlogs and processing delays, many children turned 21 before the INS adjudicated their I-485 application. In such cases, the child "ages-out" and is no longer considered to be part of the parent's application and lose their eligibility to obtain green card as a derivative beneficiary.

Under the interplay of the Concurrent Filing rule and "Child Status Protection Act", the "Age Out" problem become complicated. According to "Child Status Protection Act", these aging-out children's eligibility will be determined based on the date that a visa becomes available to them "reduced by" the number of days that the Employment-Base immigration petition was pending. They must seek to acquire permanent resident status within one year of such availability.

For example, John is a computer engineer whose employer submitted an application for a Labor Certification on his behalf. When the application is approved, his employer submits an I-140 (EB-2) immigration petition on behalf of John. At that time, John's son is 20 years and 9 months old. The I-140 petition was approved six months later, three months after Junior turns 21 years of age, and the visa number was available at that time. Under the old law, Junior has aged out. However, under the new law, his age is fixed as of the date that a visa number becomes available "reduced by" the number of days that the I-140 was pending. Since the I-140 was pending for six months, these six months must be subtracted from the child's age when a visa number became available (21 years and 3 months). Therefore, Junior's age is frozen at 20 years and 9 months. This means that he is still considered a "child" for purposes of accompanying her parents in adjusting status to permanent residence. However, Junior has to file his I-485 within one year from the date of I-140 approval.

According to "Child Status Protection Act", if the calculation results in the child's age being fixed at 21 or older, the child would be automatically reclassified to an appropriate category and retains the principal beneficiary's original priority date.

For example, if the visa number become available after four months after John's I-140 is approved, the calculation results in Junior's age being fixed at 21 years and one month. The new law provides that he would be automatically reclassified to an appropriate category, presumably family-based 2B, and that he retains his father's original priority date. This would be the date that his employer submitted the labor certification application.

Currently, visa numbers are available to all EB-1, EB-2 and EB-3 categories, any person who is a beneficiary (or applicant) of an I-140 petition which has already been filed is now eligible to file I-485 application. Family members will be eligible to file I-485 along with the principal alien. However, since the Concurrent Filing rule become effective, more eligible aliens file their I-485, and the visa number may become unavailable in the future. Thus, the eligible alien with aging-out children should file their I-485 as soon as possible.

For other information about Age Out, please click on one of the following topics below:
What is "Age Out"?
New Law On Age-Out
Expedited Processing of Age-Out Cases
Leeway of Age-Out
How much is the attorney fee