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Monday, July 31, 2006
Reeves: Legal relief for ‘age-outs’
By Robert L. Reeves
THE Child Status Protection Act (CSPA) was passed by Congress on Aug. 6, 2002 to provide immigration relief to families. One of the best known provisions of CSPA provides a formula that amends the immigration law definition of “child.”
Before CSPA, a child was defined as the unmarried son or daughter under the age of 21. Immigration is not a speedy process and many families wait several years after a petition or labor certification is filed before they can immigrate to the United States as permanent residents.
Prior to the CSPA, children who reached the age of 21 before the Immigration Service issued the green card were no longer eligible to avail themselves of such privilege with the rest of their family. They became known as “age-outs.” Families were forced to separate until these children could find alternative means to obtaining the green card.
Congress passed CSPA to address this hardship for families with a formula meant to minimize the number of age-outs.
In general, the formula allows the amount of time needed to process an immigrant visa to be subtracted from the child’s age at the time of the filing of the green card application.
The formula is complex but a simple example illustrates how it generally works. Tessie and her daughters were petitioned by her US citizen brother in 1982. The INS took one-and-a-half years to process the petition before approving it.
Several years later, Tessie’s priority date becomes current and she submits her application for interview on her immigrant visa at the consulate. During these years, Tessie’s eldest daughter, Lilabeth turned 21. At the time the application was submitted for the immigrant visa interview, Lilabeth was 21 years and one month old.
Before CSPA, Lilabeth would not be able to join her family because she had aged out. But with CSPA, Lilabeth gets to deduct 1.5 years from her age, which would make her 19-years-old, and she can then join her family.
Congress also provided relief to this situation but limited it only to those cases in which the principal’s priority date became current on or after Aug. 6, 2002, the date of the law’s enactment.
The CSPA states that any child who still age-out after the formula is applied, automatically convert to the next immigrant visa category and retain their parents’ priority date.
This retention of the priority date is an important provision. Before CSPA, Tessie would have had to file a new immigrant visa petition for Lilabeth once she (Tessie) became a permanent resident. That meant if Tessie immigrated or adjusted status and filed Lilabeth’s petition on April 1, 2006, Lilabeth’s place in line for the green card, or priority date, would be April 1, 2006.
The additional provision of CSPA changes this. The law says that Lilabeth is automatically converted to the next immigrant category. This means Tessie would not have to file a new petition. Lilabeth would also keep her mother’s priority date of 1982.
Because the wait is so long for most people, the retained priority date would also be immediately available. This means children in Lilabeth’s shoes would be able to obtain permanent residency at the same time as their parents or shortly thereafter.
The Immigration Service stated that it would provide its officers additional guidance on the CSPA provision. But, none has been issued to date, even though CSPA was passed several years ago.
A few East Coast practitioners have been able to successfully obtain green cards for age-out children under this provision. Because guidance has not yet been issued, many children who are eligible to get their green cards have not even applied although the law entitles them to the privilege. There are many practitioners who are unaware of this provision.
Applying for this benefit is a complex task precisely because the Immigration Service has not issued guidance. But children who qualify should not have to wait several more years to a right granted to them several years ago.
Parents whose children have aged out, or the children themselves, should seek the advice of competent legal counsel to determine if this section of CSPA applies to them. It will take competent counsel to compel the Immigration Service to honor the immigration law and grant the rights established by CSPA.
(www.rreeves.com)
For Bisaya stories from Cebu. Click here. (July 31, 2006 issue)
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