Cite as "AILA InfoNet Doc. No. 02080740 (posted Aug. 7, 2002)"
To view the Act, click on the "PDF Resources" link to the right.
President Bush on Tuesday, August 6, signed the Child Status Protection
Act. This new law 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, a child’s eligibility to receive
a visa or be part of his or her parent’s application was based on the child’s
age at the time that the alien relative petition was approved, not the time the
petition was filed. Because of enormous backlogs and processing delays,
many children turned 21 before the INS adjudicated the petition. In such
cases, the child “ages-out” and is ineligible to receive an immediate relative
visa or is no longer considered to be part of the parent’s application.
The child’s petition is either automatically moved to a lower preference
category or the child is required to submit his or her own petition, resulting
in years of delays and possible ineligibility.
The “Child Status Protection Act” (H.R. 1209), sponsored by Representatives
George Gekas (R-PA) and Sheila Jackson Lee (D-TX), and subsequently broadened
and improved by Senate legislation (S. 672) sponsored by Senator Dianne
Feinstein (D-CA), provides that the determination of whether an unmarried alien
son or daughter of a U.S. citizen is considered an “immediate relative child”
(under 21 years of age) will be based on the age of the alien at the time the
Petition for Alien Relative (Form I-130) is filed on his or her behalf, rather
than on the date the petition is adjudicated, as is the case under current
law. The new law makes similar determinations in the case of permanent
resident parents who subsequently naturalize after having filed petitions for
their sons or daughters and citizen parents who file petitions for married sons
or daughters where such sons or daughters later divorce. In the former
situation, the age determination will be made at the time of the parents’
naturalization. In the latter, the alien beneficiary’s age will be
determined as of the date of his or her divorce.
For the children of legal permanent residents, or those who are accompanying
or following to join on a petition for an immigrant visa, their eligibility will
be determined based on the date that a visa becomes available to them, but only
if they seek to acquire permanent resident status within one year of such
availability. In addition, the new law provides age-out protection to
alien children who accompany or follow to join parents who have filed for asylum
or refugee status. Finally, the new law provides that the family-sponsored
petition of an unmarried alien son or daughter whose permanent resident parent
subsequently becomes a naturalized U.S. citizen will be converted to a petition
for an unmarried son or daughter of a U.S. citizen, unless the son or daughter