The Child Status Protection Act was signed into law on August 6, 2002. The law provides some protection for a beneficiary child who has reached the age of 21 before adjudication of the underlying petition. Prior to this law a child’s eligibility to receive a visa or be part of his or her parent’s application would become invalid if the child turned 21 prior to approval. In this case the child’s petition would either become void or change preference categories. However, under this law a child may retain his status as a child and therefore benefit under the filed petition in limited circumstances as summarized below.

The Child Status Protection Act provides the following:

1. For Children of US Citizens: A child’s determination as immediate relative will be determined by the age of the child at the time the Petition for Alien Relative (Form I-130) is filed. (Rather than the date the Form I-130 is adjudicated)

2. For Children of Permanent Resident Aliens who Naturalize after petitions were already filed for the children: The child will be deemed a child as of the date of naturalization of the parents.

Contd.. (1)

3. For children of Permanent Resident Aliens: The child’s age for visa eligibility will be determined based on the date a visa becomes available reduced by the number of days the petition was pending. For example, an individual who is 21 years and six months old on the date the visa number became available, but whose immigrant visa petition was pending for eight months, would have his or her age reduced by eight months and would continue to be considered a child. This will only hold true for applicants that file within 1 year of a visa becoming available

4. For Divorced Children: This act only protects unmarried children. If a child gets divorced before the age of 21, then his age for eligibility will be based on the date of divorce.

5. For Derivative Children Beneficiaries of Employment Based Petitions: Previously it was believed that the Act only benefited derivative beneficiaries of family based petitions. However, recent memorandum has confirmed that the Act also can benefit derivative children beneficiaries of employment-based petitions.

The INS has only recently provided guidance as to the applicability of the law. This guidance severely limits the law and its potential benefit to many immigration petitions.

Contd.. (2)

The Act is not retroactive. Therefore for adjustment applications the Act will only benefit an alien who aged out on or after August 6, 2002 or where a petition is pending on or after August 6, 2002. “Pending” for purposes of the visa petition means agency action on the petition, including an appeal or motion to reopen filed with the Administrative Appeals Offices or the Board of Immigration Appeals.

This limits its benefit to many families, especially families that have waited long periods of time for their priority dates to become current. Although we had believed that this law would provide a great deal of relief to immigrants who had aged out just prior to its enactment, the INS has taken a position that the law is not applicable to these immigrants.

In processing applications under this Act, the INS has incorporated a three-step process, but has not informed us of any specific documentation to be filed. To process an application the INS officer will first determine if the Act applies by checking that the child aged out on or after August 6, 2002. Second the INS officer will determine the age of the child based upon the above guidelines. Finally the officer must verify that the alien sought permanent resident status within one year of visa availability. This generally means that within one year of a visa becoming available the applicant must submit a completed DS-230 Form, part 1. In the case of a child that seeks to follow to join a relative who obtained permanent resident status in the United States, the INS will use the date of filing Form I-824 (Application for Action on an Approved Application or Petition).

Therefore the law shall still benefit a number of beneficiaries, but since it is not retroactive, it will only provide relief to future applicants.

Contd.. (3)

NEW REGULATION REQUIRES APPLICANTS FOR NATURALIZATION TO FILE REVISED N-400 FORM

The INS issued a notice requiring applicants to file recent editions of the N-400 Form. These revised editions include recent legislative changes, clarify the information required from applicants, eliminate obsolete questions, and update the data collection process. This notice advises the public that all N-400 Forms that are mailed, postmarked or otherwise filed on or after March 31, 2003 must bear the edition date of May 31, 2001 or later.

Failure to file the correct form may result in additional delays in processing an application for naturalization. The correct forms can be obtained on the INS website which has been moved to: www.immigration.gov

In future articles I will attempt to dedicate a portion of my article to discuss requested topics and answer specific questions of my readers. Therefore if you have any topics you wish me to discuss or questions you would like answered about the immigration laws of the United States please e-mail them to me at paulrajan@aol.com with the subject, “Immigration Question”

Mar 2003 Priority Dates
1	22/Jun/1999	EB1	C
2A	08/Dec/1997	EB2	C
2B	01/Jul/1994	EB3	C
3	22/Feb/1997	Other	C
4	08/Mar/1991	4	C
		5	C