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Q What is the Child Status Protection Act?

A On Aug. 6, 2002, President Bush signed the Child Status Protection Act into law. It will help prevent negative immigration consequences from occurring when a child turns 21 years of age before the INS or the state department processes his application for permanent residence.

Q What is the object of the law?

A An unmarried child under 21 years of age who is eligible for permanent residence is entitled to certain benefits. For example, if his parent(s) are U.S. citizens, the child is considered an “immediate relative” and may obtain a green card without any numerical limitations. However, once he becomes 21 years of age, he no longer qualifies as an immediate relative, and must wait years to become a green card holder. Similarly, a child who is immigrating along with his parents is no longer entitled to do so once he turns 21 years of age. When a child turns 21, and loses immigration benefits, this is commonly known as “aging-out.” The law seeks to prevent the unnecessary separation of parents and children due to aging-out.

Q Is there any provision of the new law that affects asylees and refugees?

A Yes. The new law provides that a child who turns 21 years of age while his parent’s request for asylum or application for refugee status is pending may accompany or follow to join the parent once he is granted asylee/refugee status. The new law also allows such a child to adjust status as an asylee/refugee.

Q When will the INS issue regulations to implement the new law?

A We are still waiting for regulations to be issued to implement certain provisions of the immigration laws enacted in 1996. Since certain provisions of the Child Status Protection Act are time-sensitive, you must act in a timely fashion in order to preserve your rights.

Q Is the new law retroactive?

A In some cases, yes. It applies to any alien who is the derivative beneficiary or any other beneficiary of a family-based (FB) or employment-based (EB) petition even if the petition was approved prior to the effective date of the law “but only if a final determination has not been made on the beneficiary’s application for an immigrant visa or adjustment of status to lawful permanent residence pursuant to such approved petition”.

It also applies to FB and EB petitions and DV lottery applications pending on the date of the law’s enactment.

In simple English, even if a child appeared to have “aged-out” prior to Aug. 6, 2002, but under the new law his “immigration age” is under 21, he may still be able to apply for adjustment of status or an immigrant visa for a limited period of time using his original priority date and preference category.

Carl Shusterman former INS Trial Attorney and a specialist in immigration and naturalization law. You can reach him at (213) 623-4592.

Send your questions for our panel of law experts Advice given is of a general nature, and is not intended as a substitute for a personal consultation. We cannot respond individually to each letter received.