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NEW TERRORISM LAW PROVIDES GRACE PERIOD FOR SOME "AGE-OUT"
CHILDREN
by Michael J. Gurfinkel, Esq.
On October 26, 2001, President Bush signed the USA
Patriot Act into law. The primary purpose of the Patriot Act was
to deter and punish terrorist acts in the United States and around
the world, as well as to enhance law enforcement investigatory
tools. Included among the many provisions of the Patriot Act was
Section 424, "AGE-OUT PROTECTION FOR CHILDREN". This
law, although limited in scope, provides either a 90 or 45 day
"grace period" for certain children who aged out in
or after September 2001. Section 424 is as follows:
"For purposes of the administration of the
Immigration and Nationality Act (8 U.S.C. 1101 et seq.), in
the case of an alien ²
(1) whose 21st birthday occurs in September 2001,
and who is the beneficiary of a petition or application filed
under such Act on or before September 11, 2001, the alien
shall be considered to be a child for 90 days after the alien's
21st birthday for purposes of adjudicating such
petition or application; and
(2) whose 21st birthday occurs after
September 2001, and who is the beneficiary of a petition
or application filed under such Act on or before September
11, 2001, the alien shall be considered to be a child for
45 days after the alien's 21st birthday for
purposes of adjudicating such petition or application."
(Emphasis added.)
Under Section 424, in order to be eligible for the
grace period:
1. The petition or application must have been
filed on behalf of a child on or before September 11, 2001.
2. If a child aged out (turned 21) in September
2001, the alien would continue to be considered a child for
90 days after the child's 21st birthday.
3. For children who aged out after September
2001, the alien would continue to be considered a child for
45 days after the child's 21st birthday. According
to the State Department, in a cable issued on November 1, 2001,
"children whose 21st birthdays occur after September
30, 2001, could benefit from this provision for years to come".
4. The "grace period" would NOT
apply to a child who aged out before September 2001, or
if a petition is filed after September 11, 2001.
For children born during September 1980 (and
who have now already aged-out), there may still be a limited "window
of opportunity" before the 90 day grace period expires. For
example, if a child were born on September 1, 1980, they
would have up until November 30, 2001, to still be considered
a "child" (90 days from their 21st birthday).
If a child were born on September 30, 1980, the grace period
would extend through December 29, 2001 (90 days from their
21st birthday).
Thus, for children who aged out in September
2001, there is a definite, specific, window of opportunity,
from their 21st birthday to November 30, 2001 through
December 29, 2001, depending on when that child turned 21 years
of age.
For children who age out after September 2001,
there is not, according to the State Department, a specific
"expiration date" for the grace period. So long as the
petition was filed on or before September 11, 2001, the
45 day "grace period" commences after that child's 21st
birthday, regardless of when that 21st birthday may
occur.
I have to emphasize that this is recently-enacted
law, which is 342 pages in length. It is still being read, analyzed,
and interpreted by attorneys and the various governmental agencies,
including the National Visa Center, State Department, INS, and
various Embassies around the world.
However, I wanted to immediately alert my readers
to this provision, especially to those whose children aged out
in September 2001. Section 424 may provide a "miracle extension",
enabling a September age-out to possibly still enter the United
States.
In fact, I already had a client who was aging out,
and I brought Section 424 to the attention of the National Visa
Center, in the hopes of "buying time" for that child.
After conferring with the State Department, the NVC agreed that
Section 424 would be applicable to our case. As noted above, the
State Department already has issued a cable, instructing Embassies
around the world that Section 424 requires "immediate attention",
and that "Consular Officers should begin to adjudicate such
cases immediately".
The State Department is also authorizing Posts to
issue visas to such aged-out children, once instructions on "how
to do so", are forwarded. (It appears that existing government
software was not designed to accept an overage case for visa issuance,
so this program needs to be modified to accommodate Section 424
cases.)
Because of the limited window of opportunity, I
would strongly advise any alien whose child might fall within
the provisions of Section 424 to immediately contact a reputable
attorney, who can analyze your child's situation, to determine
whether the child can take advantage of this grace period.
Again, various governmental agencies are still in
the process of reviewing and analyzing the meaning and application
of Section 424, and redesigning their software to accommodate
these cases, but it appears that this extension does offer the
grace periods specified.
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