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NEW LAW HELPS "AGE OUTS" AND F-2B CHILDREN WHOSE PARENTS
NATURALIZE
by Michael J. Gurfinkel, Esq.
Here's good news in the midst of "get-tough"
immigration policies coming from Washington D.C. in recent weeks.
On August 6, 2002, President Bush signed into law
the "Child Status Protection Act" (HR 1209) which addresses
the problem of minor children losing their eligibility for certain
immigration benefits as a result of their "aging-out"
(turning 21) while waiting for a green card. It will allow many
"aged out" children of U.S. citizens and green card
holder parents to remain eligible to receive their visas as a
"child", even though they may already be 21 years of
age.
Before this new law came into effect, child's eligibility
to receive a visa is based on the child's age at the time that
the parent's petition is approved,
not the time the petition is filed.
Due to enormous backlogs and processing delays, many children
turn 21 before the government could act on the petition.
When a child "ages out," he becomes ineligible
to receive a visa as an immediate relative, or is no longer considered
to be part of the parents' visa application as a "derivative".
The child's petition automatically converts, or is moved, to a
lower preference category, resulting in more years of delay and
possible ineligibility.
The new law provides as follows:
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1. The age of the child of a U.S. citizen
will be based on the date the petition is filed.
So, if the child was under 21 years of age when the petition
was filed, the child will still be processed as a minor
(or "immediate relative") even after they turn
21.
2. If a child was petitioned by a green card
parent, while the child was under 21 years of age, and the
parent later naturalizes (became a US citizen), the
age of the child will be based on the date the parent naturalizes.
So, if the child was still under 21 on the date their green
card parent naturalized, the child will continue to be processed
as an "immediate relative", even after they turn
21.
3. If a citizen parent files a petition for
a married child, who is under 21 years of age (F-3 category),
and the child gets divorced before turning 21, the
age of the child will be based on the date their divorce
becomes final, and the divorced child could then
be processed as an immediate relative, even after turning
21 years of age.
4. For employment based petitions (through
Labor Certification), it is more complex computing the child's
age. The law provides that where the child is a derivative
beneficiary of their parent's labor certification case,
the age of the child will be based on the date an
"immigrant visa number became available for the alien's
parent", reduced by (or minus) the number of days in
the period during which the parent's petition was pending
with INS. However, the child must seek a green card
within one year of when the visa becomes available.
5. Finally, the law provides that if
a permanent resident (green card) parent petitions an adult
single child and the parent subsequently naturalizes, the
child could elect to retain their place in the F-2B category.
Under current law, if an immigrant parent naturalizes while
they have a single adult child under petition (Category
F-2B), the petition automatically
converts to unmarried son or daughter of U.S. citizen
(Category F-1). Unfortunately for Filipinos, it takes far
longer to immigrate as
the adult son or daughter of a U.S. citizen than it does
for an adult son or daughter of an immigrant. Many Filipino
parents do not realize this, and take the Oath of Citizenship,
thinking that it will make their child's petition go much
faster, or not realizing that by naturalizing, it really
results in the child being forced to wait five or more additional
years than had the parent remained an immigrant.
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If any of these situations apply to you (i.e. child
aged out or parent naturalized while adult child was under petition),
I strongly advise you to seek the advice of a reputable attorney,
who can analyze your situation and determine if you (or your child)
are entitled to benefits under the Child Status Protection Act.
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