World Journal Weekly on June 25, 2006 Published a Special Report on Mr. Lee's Fight to Qualify His Over 21 Year Old Client as a Child Under the “Child Status Protection Act" and "U.S. Patriot Act”The portion containing the report was as follows: Attorney Alan Lee based on both “U.S. Patriot Act” and “Child Status Protection Act”, applied for the whole family in one application. He believed that the first statute could allow the beneficiary daughter to receive 45 more days while the last statute could benefit her an additional 27 days. Totaling, she could have 72 days of grace period in which to exceed her 54 aged out days. Unfortunately, this application was denied. Mr. Alan Lee said that the critical focus on this case was how to handle the daughter’s extra aged-out “days”. If the law allowed the subtraction of the aged out days, the girl could come to the U.S. together with her parents. In the past, the provisions of Immigration Law were very strict that once children reached age of 21, they were not allow to immigrate with their parents. However, the "Child Status Protection Act " signed by President Bush on August 6, 2002, changed the way it calculated a child’s age and allowed, under certain conditions, the age of a 21 years old adult to be “frozen” to maintain the status of a child. Therefore, it benefits the cases where the processing time took too long causing “the child” to be aged out. The immigration attorney stated that, in fact, there are many provisions in Immigration Law that involve age. The advantage of the "Child Status Protection Act" is that the processing time of the case by the Immigration Services can be deducted and therefore help the age of a child to be locked in. To qualify for the lock-in of the age, the particular individual must meet various conditions. For example, the child’s “lock-in” date may be the time when the immigrant application was first filed, may also be the date one of the parents’ become naturalized, or may be the time when the child divorced, etc.. Therefore, Attorney Lee believed that those immigrant petitioners whose children’s age would be close to adulthood must make a plan ahead of time, in order that the age would not affect their children’s immigration. The Passage of the New Act Benefited the Public However, on August 6, 2002, the situation had tremendously changed. Immigration website (www.uscis.gov) discloses that President Bush signed the "Child Status Protection Act " into law that day. This law had eight chapters and was a supplement to the immigration law, to be used to determine whether a petition qualifying under a preference family classification and the particular alien qualified as a child. This law regulates that a child’s age can be locked in for CSPA benefits on the following dates: the date when the visa petition was filed, the date when parent became naturalized, the date when the child divorced. However, when the immigrant visa number became available, the beneficiary must file the petition within one year. The period of time while the petition was pending can be deducted from the child’s age. The date of filing a political asylum or refugee petition can be the “lock-in” date for their children.
There is no Regulatory Guidance; it is a Case-by-Case Situation After this Act became effective, USCIS did not formulate any relevant
regulations to provide further regulatory guidance for implementation,
it had only issued two memoranda to Service Centers for instructions.
The memoranda simply stated that they could only provide the case
law to the USCIS officers, as they could not possible predict the
possible scenario on each case. If a parent naturalizes and becomes an U.S. citizen, and on the date of naturalization, his/her child is still under the age of 21, USCIS will use this date to determine the age of the child. For example, a permanent resident applied an immigrant petition for his/her 16 year-old daughter, later when he/she became naturalized the daughter had turned 20 years old. Hereafter, the daughter would maintain at this age. If a child gets divorced, then the date of divorce will decide his/her immigration category. For example, an U.S. citizen applied immigration for his/her 18-year-old married son, but if the son got divorced before the age of 21, then the son would belong to the category of unmarried child, and his age could be locked-in until he received his green card. The memorandum said that a beneficiary’s age is locked-in when the priority date becomes current with credit given for the time that the petition was pending. For example, a petition for alien relative (I-130) was filed in 1998, at that time the child was 20 years old. This petition’s priority date became current on September 20, 2002, and even though the child had already turned 24 years old, the beneficiary was still considered as 20 years old because this petition took four years to process. However, this “child” must file his application for an immigration visa or adjustment of status within one year of that date. The July 23, 2003 memorandum issued to the overseas consulates
involved the children whose parents were granted asylee or refugee
status. They must satisfy one of the following conditions in order
for them to be treated as “children”: 2. If the refugee/asylee relative petition (I- 730) was pending on August 6, 2002, and at the time their children were under the age of 21; 3. Parent’s refugee/political asylum petition or his/her relative's petition was filed on or before August 6, 2002, and the children turned 21 years old on or after August 6, 2002. Must Pay Attention to the Age Eligibility Experienced attorney Alan Lee said that there were several kinds of age eligibility, and “recently we had many cases like this”. In order for the client’s children to be able to immigrate to the U.S. with their parents, Mr. Lee often reminds the clients not to miss the opportunity. He said, a divorced parent marries to an U.S. citizen, the children of the parent become the stepchildren of the U.S. citizen; and the spouse of this parent can apply immigrant visa for the stepchildren. However, it has an important condition that is the date of the parent’s marriage, the children must be under the age of 18 to qualify. “Therefore, the date on the marriage certificate is extremely important.” The age of 16 is an important eligibility age. For example, to adopt a child, the adoption procedure must be completed before child’s age turns 16. For children overseas who are under the age of 16, they do not need to provide the consulate with a ‘no criminal record’. Age Factor Affects Aliens in Many Ways For immigrants, young and old age has its own advantages. The young child may be treated as a “child”, and not only immigrate to the U.S. with the parents, but also not have to pay the adult application fees. However, if the child wants to petition his/her parent to immigrate, he/she must wait until the age of 21. The young immigrant can save money. Attorney Alan Lee said that, in 2001, U.S. Government passed a special bill of 245(i), it permitted illegal immigrants to apply for the labor certification and alien relative petition, but they must pay $1,000 fine. However, if a child is under the age of 17, his/her fine can be waived. Fight to Qualify as a Child When A Little Over 21 Years Old Attorney Alan Lee has handled many immigration cases. He said that Immigration seldom denied cases solely based on the beneficiary’s age, and the above Hong Kong case was unfortunately one of them. He shook his head with a forced smile said that, “We concentrated this case on the calculation of time.” Attorney Lee argued this case based on two statutes – U.S. Patriot Act and Child Status Protection Act. Due to the slowing down of immigration processing time after 9/11, the "U.S. Patriot Act" allowed the affecting aliens a 45-day grace period. However, the immigration officer also adopted these two statutes for rebuttal. The immigration officer said, if the priority date became current and the visa number was available, then the “U.S. Patriot Act" may be applied. However, at the time of the family’s priority date became current, there was no visa number available. The visa number only became available in September 2003. Therefore the "U.S. Patriot Act" could not apply for the daughter. This officer also used the "Child Status Protection Act" to refute Attorney Alan Lee. The officer said that Immigration altogether spent 27 days to process this case, and this period could be subtracted. But after subtraction, the beneficiary's age was still 21 years old and 27 days. Therefore, she was still over age, and this statute could not apply for the daughter. After receiving the Hong Kong Consulate’s denial, Alan Lee
appealed to the Department of State. He believed that the spirit
of these two statutes should be to protect the benefits of immigrants,
moreover, this girl's age only surpassed over 20 more days. If she
could not come to the U.S. with her family, it would cause hardship
to herself and her family.
† The author is a 25+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004. ‡ This article © 2006 Alan Lee, Esq.
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Copyright © 2003-2012 Alan Lee,
Esq. |
In September 2003, New York immigration attorney Alan Lee received
a letter from Immigrant Visa Unit Director, U.S. Consulate in Hong
Kong, stating that the beneficiary daughter of his client was over
the age of 21 and therefore could not immigrate to the U.S. with
her parents. |
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