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The "Child Status Protection Act", effective August 6,
2002, addresses the problems of minor children losing their eligibility
for certain immigration benefits as a result of USCIS processing delays.
Prior to the passage of this law, a child's eligibility in Employment-Based
Immigration situations 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 child's I-485 was adjudicated. Because of enormous
backlogs and processing delays, many children turned 21 before the
USCIS adjudicated their I-485 applications. In such cases, the children
"age-out" and are no longer considered to be part of the
parent's application and lose their eligibility to obtain green
cards as a derivative beneficiary.
Children who otherwise would have aged out may successfully adjust
their status through the additional interplay of the new Concurrent
Filing rule and the "Child Status Protection Act." According
to the "Child Status Protection Act," the eligibility
of these aging-out children will be determined by their age at the
date a visa becomes available to them minus the number of days that
the Employment-Based immigration petition was pending. Furthermore,
these children must file for permanent resident status within one
year of such availability. For a clearer illustration of this rule,
please see the different scenarios below.
Example 1
The Labor Certification application that was submitted on John's
behalf on January 1, 2000 was later approved on December 31, 2000.
Afterwards, his employer submits an I-140 (EB-2) immigration petition
on John's behalf on January 1, 2002. At that time, John's son is
20 years and 7 months old. John's I-140 petition was pending for
six months and was approved on July 1, 2002, one month after Junior
turns 21 years of age. The visa number for EB-2 was available for
John on July 1, 2002. Under the old law without the Child Status
Protection Act, Junior has aged out because he is now 21 years old.
However, under the new law, his age is fixed as of the date that
a visa number becomes available minus the number of days that the
I-140 was pending. Because John's I-140 was pending for six months,
these six months must be subtracted from Junior's age at the time
the visa number became available on July 1, 2002. Subtracting six
months from Junior's age of 21 years and one month on July 1, 2002,
Junior's age is fixed at 20 years and 7 months. Thus, even though
he was already 21 years and one month on July 1, 2002, he is still
considered a "child" for purposes of accompanying his
parents in adjusting his status to permanent residence. However,
Junior has to file his I-485 within one year from the date of I-140
approval, before July 1, 2003. The length of time that is takes
the USCIS to adjudicate Junior's case is no longer important in these
cases.
According to "Child Status Protection Act", if through
the above calculation, the child's age is fixed at 21 or older,
the child would be automatically reclassified to an appropriate
category and retains the principal beneficiary's original priority
date. Please see the next example below
Example 2
Same facts as above except that Junior is 21 years and seven months
old at the time of John's I-140 approval. Because John's I-140 was
pending for six months, Junior's age will be fixed at 21 years and
one month. Even with the Child Status Protection Act, Junior still
ages out and may not adjust his status at this time. However, he
will automatically be reclassified to an appropriate category, family-based
2B, and retain his father's original priority date, January 1, 2000,
which is the date John's employer filed John's Labor Certification
application.
Example 3
Richard filed his I-140 immigration petition (NIW) on August 1,
2002. Richard's son, Simon, is 21 years and one month old. According
to the new I-140 and I-485 Concurrent Filing Rule, Richard filed
his I-485 because the visa number was currently available for Richard
at that time. However, Simon cannot file his I-485 with his father
because he aged out.
Example 4
Howard's daughter, Rachel, is 20 years and 10 months old. Howard
filed his I-140 immigration petition (NIW) on August 1, 2002. According
to the new I-140 and I-485 Concurrent Filing Rule, Howard and Rachel
filed their I-485 since the visa number was available for Howard
at that time. Thus, according to the "Child Status Protection
Act," no matter how much time Howard's I-140 is pending, Rachel
will not age out.
Visa numbers are currently available to all EB-1, EB-2, and EB-3
categories. Thus, with the new Concurrent Filing rule, any person
who is a beneficiary (or applicant) of an I-140 petition that has
already been filed or is filing the I-140 at this time is now eligible
to file the I-485 application as well. Family members will be eligible
to file the I-485 along with the principal alien. However, since
the Concurrent Filing rule became effective, visa numbers may become
unavailable in the future because more eligible aliens will be filing
their I-485. Thus, eligible aliens with aging-out children should
file their I-485 as soon as possible. Please see next example.
Example 5
Jenny filed her I-140 immigration petition (NIW) on August 10, 2002.
Jenny has a son, Benny, who is 20 years and eleven months old. However,
due to the new I-140 and I-485 Concurrent Filing Rule, many aliens
have filed their I-140 and I-485 together and the visa number for
EB-2 has been exhausted. However, the visa number will not be current
until December 2002 when Benny will be 21 years and three months
old. If Jenny's I-140 is pending for six months and will be approved
in February 2003, these six months will be reduced from Benny's
age in December 2002 when he is 21 years and three months old. Thus,
his age is fixed as 20 years nine months. However, if Jenny's I-140
petition is pending for only two months and will be approved in
October 2002, Benny's age will be fixed as 21 years and one month.
Thus, Benny ages out in this scenario and must wait until his priority
date under family-based 2B immigration becomes current.
Example 6
Jason filed his I-140 immigration petition (NIW) on June 30, 2002.
Jason has a son, Ken, who is 20 years and ten months old at that
time. According to the visa bulletin, an immigration visa number
became available for Jason on July 31, 2002. Ken was 20 years and
eleven month on July 31, and he is not in the U.S. but in his home
country. Because of the new I-140 and I-485 Concurrent Filing Rule
Jason filed his I-485 on August 10, 2002. If Jason's I-140 is pending
for 6 months until December 31, 2002, one month pending period from
June 30 to July 31, 2002 should be subtracted from Ken's age on
July 31, 2002. Thus, Ken's age is fixed as 20 years and 10 months.
Ken may apply for his immigrant visa through Consular Processing
at U.S. Consulate
For more information about "Age Out", please click the
following topics:
Description
Z&A's memo
Age-Out: The Interplay of Concurrent
Filing and "Child Status Protection Act"
Keep H-1 and L-1 Status During
The Employment-Based I-485 Pending Period
Frequently Asked Questions about I-40 and I-485
Services that We Provide
Attorney's Fees
Articles & News on I-140 and I-485
Concurrent Filing Issue in Latest
Z&A Memo
Memo: Be Aware of Abandonment of COS and AOS Applications
The Impact of I-140/I-485 Filing on F-1 Students
The Issues Related to I-140/I-485 Filing for H-1B Holders
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