The Child Status Protection Act signed by
Pres. G. W. Bush in 2001 ensures that children born to American citizen parents
outside the United States
do not lose their priority in line for permanent residence status when they
turn 21.
Foreign-born children under 21 of
American citizens are classified as immediate relatives entitled to immediate
consideration for immigrant visa issuance. They are not included in the four
groups of family-based preference categories and do not have to wait for a
preference quota.
Although an immigrant visa is immediately
available for children under 21 of US citizen parents, the administrative
processing takes time, usually several months. In some cases, due to backlogs
and where the visa petition is filed when the child is about to turn 21, the
children age-out before they are called for a visa interview. The consequence
before this amendment took effect was that the visa petition would be
automatically reclassified as first preference family-based petition covering
unmarried children of US citizens under 21 years of age. For beneficiaries from
the Philippines,
that means additional long wait considering that the priority date for first
preference family-based categories is running more than thirteen years behind.
Under this amended law, immediate
relative status is determined when the application is filed, not when INS
completes its processing. In effect, immediate relative status which entitles
the alien to immediate consideration for visa issuance is preserved even after
the alien turns 21 years before the actual issuance of the immigrant visa. The
amendments benefit an alien who aged out on or after the effectivity of the Act
on August 6, 2002.
As for an alien who aged out prior to
August 6, 2002, an INS memorandum says that the only exception allowed by the
Act is if the petition for classification was pending on or after August 6,
2202; or the petition was approved before August 6, 2002, but no final
determination had been made on the beneficiary’s application for an immigrant
visa or adjustment of status to lawful permanent residence pursuant to such
approved petition. For purposes of determining whether an alien aged out
before or after August 6, 2002, the Patriot Act provides that an alien who is
the beneficiary of a petition filed before September 11, 2001 remains eligible
for child status for 45 days after turning 21.
In addition to immediate relative and
direct beneficiary family-based preference categories, the Act also applies to
derivative beneficiaries in both family-based and implyment-based preference
categories. With respect to the employment based category, the benefiary’s age
is to be calculated by first determining the age of the alien on the date that
a visa number becomes available as indicated in the DOS Visa Bulletin.
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