On May 16, 2002, the Senate Judiciary Committee unanimously passed S. 672, the Child Status Protection Act, introduced by Senator Dianne Feinstein (D-CA). This bill addresses the problem of minor children losing their eligibility for green cards because of INS processing delays. Under current law, a child's eligibility to receive a visa as part of his or her parent's application is based on the child's age at the time that the application is approved, not the time the application is filed. Because of the enormous processing delays in approving applications, children may turn 21 before the application is approved. In those cases, the child "ages-out" and is ineligible to receive a green card based on their parent's application. The child's petition is either automatically moved to a lower preference category or the child is required to submit his or her own application, with resulting years of delays or loss of eligibility to apply.

In June 2001, the House had unanimously passed H.R. 1209, the Child Status Protection Act of 2001. That bill offered protection only to the children of U.S. citizens who aged-out during the process of applying for permanent residency. In the Senate, Senator Dianne Feinstein (D-CA) introduced S. 672, but did not limit its protections to the children of U.S. citizens. In addition to providing the protections included in H.R. 1209, Senator Feinstein's bill sought to protect the children of legal permanent residents, refugees and asylees, diversity visa holders, and the children of employment-based applicants from aging out during the long processing delays.

The legislation approved by the Senate Judiciary committee is a modified version of S. 672 that provides that the children of U.S. citizens would have their eligibility determined based on their age on the date that a visa petition was filed, rather than the date it is approved. For newly naturalized citizens, children who have been waiting for a visa will have their eligibility determined based on their age on the date that their parents became naturalized. For the children of legal permanent residents, or those who are accompanying or following to join on a petition for an immigrant visa, their eligibility will be determined based on the date that a visa became available to them, but only if they seek to acquire permanent resident status within one year of such availability.

According to a report from the American Immigration Lawyers Association, the Senate bill is expected to pass the full House and Senate quickly, and the President is expected to sign the bill into law. Berry, Appleman & Leiden will continue to monitor and report the progress of this important legislation.

Source: Information provided by American Immigration Lawyers Association