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:
By 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.
This is an alien relative immigrant case. The petitioner was an
U.S. citizen who applied for his brother in Hong Kong. The petition
for alien relative was filed on October 24, 1991, and approved 27
days later. Because this petition had to wait for its priority date
to become current, they waited until September 1, 2003. Unfortunately,
by then their daughter had turned 21 years and 54 days old.
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
The definition of “child” under U.S. Immigration Law
is an alien must be under 21 years of age. If an alien qualifies
as a child, he/she may be immigrated together with his/her parents
to the U.S.. If the alien surpasses the age of 21, he/she is considered
as an adult and must immigrate under another classification.
The common situation is that when a parent files for immigration
petition, the child is usually under the age of 21. However, while
the petition is still pending for approval, the child surpasses
21 years old and loses the opportunity to immigrate to the U.S.
with the parents. This situation is called “aged out”.
Attorney Lee said that this situation is quite common among Chinese
because the immigrant visa quota is far fewer than the Chinese people
who applied, therefore, the wait time for priority date to become
current is longer.
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.
The most obvious benefit of this Act is that Immigration changed
the way they calculate the age of a child. Prior to this Act, when
a child surpassed 21 years old of age, he/she could not immigrate
with the parent, now this law has changed. For example, an U.S.
citizen applies I-130 for his/her child who is under the age of
21, and if the Immigration Services has not yet processed this case,
the age of the petitioner’s child can be locked in under age
of 21.
Similarly, if a petitioner who is a permanent resident applies I-130
for his/her child who is under age of 21, the period of time required
by the Immigration Services to process this case can be deducted.
After the subtraction and the child is still under the age of 21,
he/she is qualified for the benefit as a child. This provision can
be used for the derivative beneficiary of family-sponsored or employment-based
immigrants.
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.
The memorandum issued to the USCIS Centers on September 20, 2002
stipulated explicitly, that the filing date would determine the
age of an U.S. citizen’s child. For example, if U.S. citizen
files petition for his/her 20 year-old child, if the case has not
been complete when the child turns 21 years of year and this child
maintains unmarried status, this child is still a child per the
definition of the Immigration Law.
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”:
1. If the parents filed refugee/political asylum petition on or
before August 6, 2002, and at the time their children were under
the age of 21;
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.
In 2004, the Department of State approved this application and granted
an immigrant visa to the daughter. When Attorney Lee told the family
this good news, the family was shocked and could not believe their
good fortune. Alan Lee said “There was no reason to be so
stringent on the age.”
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