News -- April 2003
Reaching Age 21 is Still Important—Impact of the Child Status Protection Act
A child's 21st birthday has traditionally signified entry into adulthood. For children of immigrants, this has important consequences—in many cases, it serves as a deadline by which some action must be taken for them to qualify as their parents' dependents, and thus be eligible for related immigration benefits.
On August 6, 2002 President Bush signed the Child Status Protection Act (the "Act"), which helps those nearly 21, and in some cases older, to obtain some of these benefits, such as permanent resident status and citizenship. To gain protection, the parents or their dependents must take specific action before the child reaches adulthood ("ages-out").
The new law covers a number of different situations, the most important of which are:
- When a U.S. citizen parent files a Petition for Alien Relative (Form I-130) for a dependent who is under age 21 on the date of filing. In these cases, if processing of the petition takes a long time, the dependent, if still unmarried, remains eligible to gain permanent resident status within the "child" category even after reaching adulthood.
- When a U.S. citizen parent files a petition for a married son or daughter, and the child later gets a divorce. Here, where the dependent changes categories to that of "unmarried son or daughter," the Act states that his or her age is determined as of the date of the divorce. This means that dependents who marry young and get divorced before turning 21 can still obtain benefits as "unmarried children."
- When a parent applies for Lawful Permanent Residence and the children seek to apply either concurrently with the parent, or later, to join the parent. The children can qualify as dependents, even after age 21, based on a new formula established under the Act. In most situations, where priority dates are current, the age determination will be made as of the date the I-130 or I-140 petition is filed. The beneficiary must also seek to acquire permanent resident status within one year of the date the immigrant visa is available (approval of the petition, or if there is a waiting list, the day the person's priority date becomes current). In many employment-based cases (for which immigrant visas are now available in every category), this can be ensured by filing an I-485 Application for Permanent Residence for every family member concurrently with the primary applicant's I-140 petition (for children not in the U.S., a form I-824 seeking consular processing can be filed with the adjustment papers).
- When a permanent resident parent files an I-130 petition for a dependent son or daughter, and then, while that petition is pending, the parent becomes a naturalized U.S. Citizen. If the dependent is under 21 when the parent naturalizes, he or she can still qualify for benefits as a dependent. Alternatively, the dependent can elect to have the petition convert to a petition for an unmarried son or daughter of a U.S. citizen, if that change would result in an earlier visa.
- When parents have filed for asylum or refugee status. Here, children may benefit from age-out protection benefits if they turn 21 years old in the period after the application is filed but while still pending.
While this Act may relieve anxiety for many families with children nearing adulthood, the bottom line remains the same--file early, before deadlines loom close.
(c) 2006 Leete, Kosto & Wizner, LLP See related Disclaimer at www.lkwvisa.com