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EmailCHILD STATUS PROTECTION ACT OF 2002: ALDAC #1
R 262022Z AUG 02
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMEMBASSY DUSHANBE
AMEMBASSY KABUL
AMEMBASSY KHARTOUM
UNCLAS STATE 163054
VISAS-
E.O. 12958: N/A
TAGS: CVIS
SUBJECT: CHILD STATUS PROTECTION ACT OF 2002: ALDAC #1
REF: A) P.L. 107-208 OF AUGUST 6, 2002, H.R. 1209 B) STATE 123775
1. Summary: This cable provides the text of a new law, the "Child
Status Protection Act of 2002", signed into law by the President
on AUGUST 6, 2002 and effective on that date. It also provides
initial interpretative guidance regarding it, as well as
procedures to be used to implement it. The new law radically
changes the process for determining whether a child has "aged
out" for the purpose of the issuance of visas and the adjustment
of status of aliens in most immigrant categories. End summary.
2. The text of the law is as follows:
"SECTION 1. SHORT TITLE.
This Act may be cited as the `Child Status Protection Act''.
SEC. 2. USE OF AGE ON PETITION FILING DATE, PARENT''S
NATURALIZATION DATE, OR MARRIAGE TERMINATION DATE, IN DETERMINING
STATUS AS IMMEDIATE RELATIVE.
Section 201 of the Immigration and Nationality Act (8 U.S.C.
1151) is amended by adding at the end the following:
`(f) RULES FOR DETERMINING WHETHER CERTAIN ALIENS ARE
IMMEDIATE RELATIVES-
`(1) AGE ON PETITION FILING DATE- Except as provided in
paragraphs (2) and (3), for purposes of subsection
(b)(2)(A)(i), a determination of whether an alien
satisfies the age requirement in the matter preceding
subparagraph (A) of section 101(b)(1) shall be made using
the age of the alien on the date on which the petition is
filed with the Attorney General under section 204 to
classify the alien as an immediate relative under
subsection (b)(2)(A)(i).
`(2) AGE ON PARENT''S NATURALIZATION DATE- In the case of
a petition under section 204 initially filed for an alien
child''s classification as a family-sponsored immigrant
under section 203(a)(2)(A), based on the child''s parent
being lawfully admitted for permanent residence, if the
petition is later converted, due to the naturalization of
the parent, to a petition to classify the alien as an
immediate relative under subsection (b)(2)(A)(i), the
determination described in paragraph (1) shall be made
using the age of the alien on the date of the parent''s
naturalization.
`(3) AGE ON MARRIAGE TERMINATION DATE- In the case of a
petition under section 204 initially filed for an alien''s
classification as a family-sponsored immigrant under
section 203(a)(3), based on the alien''s being a married
son or daughter of a citizen, if the petition is later
converted, due to the legal termination of the alien''s
marriage, to a petition to classify the alien as an
immediate relative under subsection (b)(2)(A)(i) or as an
unmarried son or daughter of a citizen under section
203(a)(1), the determination described in paragraph (1)
shall be made using the age of the alien on the date of
the termination of the marriage.''.
SEC. 3. TREATMENT OF CERTAIN UNMARRIED SONS AND DAUGHTERS SEEKING
STATUS AS FAMILY-SPONSORED, EMPLOYMENT-BASED, AND DIVERSITY
IMMIGRANTS.
Section 203 of the Immigration and Nationality Act (8 U.S.C.
1153) is amended by adding at the end the following:
`(h) RULES FOR DETERMINING WHETHER CERTAIN ALIENS ARE
CHILDREN-
`(1) IN GENERAL- For purposes of subsections (a)(2)(A)
and (d), a determination of whether an alien satisfies
the age requirement in the matter preceding subparagraph
(A) of section 101(b)(1) shall be made using--
`(A) the age of the alien on the date on which an
immigrant visa number becomes available for such
alien (or, in the case of subsection (d), the date
on which an immigrant visa number became available
for the alien''s parent), but only if the alien has
sought to acquire the status of an alien lawfully
admitted for permanent residence within one year of
such availability; reduced by
`(B) the number of days in the period during which
the applicable petition described in paragraph (2)
was pending.
`(2) PETITIONS DESCRIBED- The petition described in this
paragraph is--
`(A) with respect to a relationship described in
subsection (a)(2)(A), a petition filed under section
204 for classification of an alien child under
subsection (a)(2)(A); or
`(B) with respect to an alien child who is a
derivative beneficiary under subsection (d), a
petition filed under section 204 for classification
of the alien''s parent under subsection (a), (b), or
(c).
`(3) RETENTION OF PRIORITY DATE- If the age of an alien
is determined under paragraph (1) to be 21 years of age
or older for the purposes of subsections (a)(4) and (d),
the alien''s petition shall automatically be converted to
the appropriate category and the alien shall retain the
original priority date issued upon receipt of the
original petition.''
SEC. 4. USE OF AGE ON PARENT''S APPLICATION FILING DATE IN
DETERMINING ELIGIBILITY FOR ASYLUM.
Section 208(b)(3) of the Immigration and Nationality Act (8
U.S.C. 1158(b)(3)) is amended to read as follows:
`(3) TREATMENT OF SPOUSE AND CHILDREN-
`(A) IN GENERAL- A spouse or child (as defined in
section 101(b)(1) (A), (B), (C), (D), or (E)) of an
alien who is granted asylum under this subsection
may, if not otherwise eligible for asylum under this
section, be granted the same status as the alien if
accompanying, or following to join, such alien.
`(B) CONTINUED CLASSIFICATION OF CERTAIN ALIENS AS
CHILDREN- An unmarried alien who seeks to accompany,
or follow to join, a parent granted asylum under
this subsection, and who was under 21 years of age
on the date on which such parent applied for asylum
under this section, shall continue to be classified
as a child for purposes of this paragraph and
section 209(b)(2), if the alien attained 21 years of
age after such application was filed but while it
was pending.''
SEC. 5. USE OF AGE ON PARENT''S APPLICATION FILING DATE IN
DETERMINING ELIGIBILITY FOR ADMISSION AS REFUGEE.
Section 207(c)(2) of the Immigration and Nationality Act (8
U.S.C. 1157(c)(2)) is amended--
(1) by striking `(2)'' and inserting `(2)(A)''; and
(2) by adding at the end the following:
`(B) An unmarried alien who seeks to accompany, or follow to
join, a parent granted admission as a refugee under this
subsection, and who was under 21 years of age on the date on
which such parent applied for refugee status under this
section, shall continue to be classified as a child for
purposes of this paragraph, if the alien attained 21 years of
age after such application was filed but while it was
pending.''
SEC. 6. TREATMENT OF CLASSIFICATION PETITIONS FOR UNMARRIED SONS
AND DAUGHTERS OF NATURALIZED CITIZENS.
Section 204 of the Immigration and Nationality Act (8 U.S.C.
1154) is amended by adding at the end the following:
`(k) PROCEDURES FOR UNMARRIED SONS AND DAUGHTERS OF CITIZENS-
`(1) IN GENERAL- Except as provided in paragraph (2), in
the case of a petition under this section initially filed
for an alien unmarried son or daughter''s classification
as a family-sponsored immigrant under section
203(a)(2)(B), based on a parent of the son or daughter
being an alien lawfully admitted for permanent residence,
if such parent subsequently becomes a naturalized citizen
of the United States, such petition shall be converted to
a petition to classify the unmarried son or daughter as a
family-sponsored immigrant under section 203(a)(1).
`(2) EXCEPTION- Paragraph (1) does not apply if the son
or daughter files with the Attorney General a written
statement that he or she elects not to have such
conversion occur (or if it has occurred, to have such
conversion revoked). Where such an election has been
made, any determination with respect to the son or
daughter''s eligibility for admission as a family-
sponsored immigrant shall be made as if such
naturalization had not taken place.
`(3) PRIORITY DATE- Regardless of whether a petition is
converted under this subsection or not, if an unmarried
son or daughter described in this subsection was assigned
a priority date with respect to such petition before such
naturalization, he or she may maintain that priority
date.
`(4) CLARIFICATION- This subsection shall apply to a
petition if it is properly filed, regardless of whether
it was approved or not before such naturalization.''
SEC. 7. IMMIGRATION BENEFITS FOR CERTAIN ALIEN CHILDREN NOT
AFFECTED.
Section 204(a)(1)(D) of the Immigration and Nationality Act (8
U.S.C. 1154(a)(1)(D)) is amended by adding at the end the
following new clause:
`(iii) Nothing in the amendments made by the Child Status
Protection Act shall be construed to limit or deny any right
or benefit provided under this subparagraph.''
SEC. 8. EFFECTIVE DATE.
The amendments made by this Act shall take effect on the
date of the enactment of this Act and shall apply to any
alien who is a derivative beneficiary or any other
beneficiary of--
(1) a petition for classification under section 204
of the Immigration and Nationality Act (8 U.S.C.
1154) approved before such date 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;
(2) a petition for classification under section 204
of the Immigration and Nationality Act (8 U.S.C.
1154) pending on or after such date; or
(3) an application pending before the Department of
Justice or the Department of State on or after such
date."
INTERPRETATION
--------------
3. The intent of this legislation (CSPA) is to preserve
child status for certain alien children beneficiaries who
age-out, and particularly with respect to section 3, age-
out because of delays in processing. Age-out benefits are
extended to applicants who should be processed as Immediate
Relative children (IR-2, IR-3, IR-4) (note that although
IR-3s and IR-4s are technically covered by the new law,
application in those cases would appear to be very rare)
and applicants who should be processed as Second Preference
children (F2-A), but who attain the age of 21 before their
cases are finalized, as well as derivative beneficiary
children in all preference categories and DV cases.
4. The law also provides relief for F2B applicants in
cases where the petitioner has naturalized and the
applicant would be disadvantaged by a conversion to F1
status due to a less favorable F1 cut-off date. (This
particular provision is only of interest to natives of
those few countries (e.g., the Philippines) where the F1
cut-off date is earlier than the F2B cut-off date).
5. The CSPA also provides age-out relief for children of
asylees and refugees, but these sections will not be
addressed in this cable since interpretations regarding
them must come from USCIS.
6. Because the language in some sections of the CSPA is
extremely complicated, especially section 3, there may be
refinements in interpretation with additional guidance to
follow, as needed. To the extent possible, automated
systems will be reworked to implement the new rules, but
necessary adjustments likely will not be completed in the
immediate future. Any new procedures or processes to be
used in these cases will be the subject of future cables as
they are developed.
Section 2- Immediate Relatives
-------------------------------
7. Section 2 establishes rules for determining whether
certain aliens are Immediate Relatives. Under the new
rules, consular officers will use the age of the
beneficiary on the date of filing the Form I-130, Petition
for Alien Relative, to determine whether the applicant
qualifies as an IR-2, IR-3 or IR-4. For example, if a Form
I-130 is filed for a child of an Amcit when the child is
under 21, the child will permanently qualify as a child as
long as he/she does not marry.
8. Section 2 also amends the Act to allow the age of an
alien child who is a Second Preference beneficiary but
whose parent/s naturalizes and whose petition is converted
to Immediate Relative classification, to be considered the
age on the date of naturalization. Consular officers will
now use the child''s age on the date of the parent''s
naturalization to determine whether the child will be
eligible for Immediate Relative status. For example, if a
LPR files a Form I-130 for a 17 year-old son and then
naturalizes when the son is 20, the son will remain
eligible for a visa as an IR-2, even if the son has
attained the age of 22 on the date of visa application.
The applicant should submit evidence of his parent''s
naturalization (a bona fide copy of the naturalization
certificate) to establish eligibility for age-out relief
under this provision of the CSPA.
9. Section 2 also amends the Act to allow third preference
married children of Amcits to use the age on the date of
the termination of a marriage when applying for a visa. If
the alien is under 21 at the time of the termination of
his/her marriage, then his/her petition will convert to IR-
2. If the alien is 21 or older on the date his/her
marriage is terminated, an F-3 will convert to F-1 status.
For example, if the 19 year-old married son of an Amcit
petitioner obtains a divorce before attaining 21, as long
as he remains unmarried, the son will be classifiable as an
IR-2, even if he does not apply for a visa until age 23.
10. Aliens who qualify as a K-4 child are eligible for
child status protection under this section if a separate
immediate relative petition has been filed in their name
and they are accompanying a K-3 parent.
Section 3-Preference and DV Categories
--------------------------------------
11. Section 3 of the CSPA applies to:
-- F2A principal applicants;
-- derivative applicants in all family- and employment-
based preference categories; and
-- derivative applicants in DV cases.
12. This section provides relief from age-out by
establishing the alien''s age as of the date a visa becomes
available for the alien (or the alien''s parent), minus the
number of days that the petition was pending. Only those
aliens who seek to acquire the status of an alien lawfully
admitted for permanent residence within one year of visa
availability are eligible for relief under this section.
For this section, visa availability is defined to require
both a current priority date and an approved petition. The
number of days a petition has been pending is calculated
from the date the petition was filed to the date the
petition is adjudicated. "Seeks to acquire the status of
an LPR" will be defined to mean apply for an immigrant
visa, i.e., the date of visa application.
13. Advisory Opinions. Because the interpretation of
Section 3 is the subject of ongoing discussions with the
Service, the Department requests that, until advised
otherwise, posts seek an Advisory Opinion from CA/VO/L/A on
cases that fall within this section of the CSPA.
14. The Department''s initial interpretation of this
section can be illustrated by the following two examples.
-- If an LPR parent filed an I-130 in 1998 when his
son/daughter was 20 and the visa became available today and
the I-130 was never adjudicated until today, the
beneficiary''s "age" when determining preference category
would be equal to the age of the alien on the date the
priority date became current (24 years) minus the period
the petition was pending adjudication (4 years), which
would mean the alien''s age would be deemed to be 20. The
alien, however, would only benefit from this special
treatment if s/he applies for a visa within one year of the
visa becoming available. Even though the beneficiary in
this example is chronologically age 24 today (the date on
which his visa becomes available)-by applying the formula
in section 3, he is only 20 because his chronological age
on the date his visa becomes available has been reduced by
the number of days his petition has been pending (4 years).
-- If, however, this same Form I-130 had been adjudicated
in 2000, the beneficiary''s "age" would be 22 when
determining preference category. Although the beneficiary
is chronologically 24 (his age on the date his visa becomes
available), his petition was only pending for 2 years, so
only two years are deducted from his age at the time the
priority date became current, making the alien 22.
15. DV Applicants. Section 3 also applies to derivative
DV applicants. Because the DV process differs
substantially from the preference process, however,
treatment of DV derivatives will also be somewhat
different. For the purpose of calculating the period
during which the "petition is pending", VO has decided to
use the period between the first day of the DV mail-in
application period for the program year in which the
principal alien has qualified and the date on the letter
notifying the principal applicant that his/her application
has been selected (congratulatory letter). That period
will be subtracted from the derivative alien''s age on the
date the visa becomes available to the principal alien.
The date the visa becomes available will be the first day
on which the Department determines the principal alien''s
selection number becomes eligible for visa processing.
16. V Applicants. While subject to revision, the
Department interprets V visa applicants as ineligible for
child status protection under this section.
17. Application to Pending cases. The age-out protections
of the CSPA apply to the following three classes cases:
-- cases where the petition or visa application was filed
on or after the date of enactment (August 6, 2002);
-- cases where the petition was filed prior to August 6,
2002 but was still pending (i.e., not yet approved) on that
date; and
-- certain cases where the petition was approved prior to
August 6, 2002, but only if a final determination has not
been made on the beneficiary''s (including derivative
beneficiary''s) application for a visa or adjustment of
status prior to that date. At present, VO is interpreting
this to mean that an alien whose IV application was denied
prior to August 6 because s/he aged out or was otherwise
found ineligible cannot benefit from Section 3. However,
for this purpose a 221(g) denial will not be considered a
final determination. Therefore, an alien whose application
was filed prior to August 6, but was refused on 221(g)
grounds will receive the benefit of Section 3 so long as
the application was otherwise pending on August 6. Under
this interpretation, beneficiaries (and derivative
beneficiaries) of petitions approved prior to August 6,
2002 who never applied for a visa prior to August 6 because
they had aged out will receive no benefit from Section 3
and cannot apply afterward in order to receive a benefit.
(Note that these are preliminary interpretations and could
change after further interagency discussions). DV
applicants applying on or after August 6 or whose cases
were pending on that date will receive the benefit of
Section 3.
18. Applicability of Section 424 of the USA Patriot Act.
The 45 day age-out protection afforded by section 424 will
continue to apply to all relevant cases. Where both are
available to an applicant, the more generous benefit should
be applied to the alien''s case.
Section 6-Unmarried Sons and Daughters of Amcits
------------------------------------------------
19. Section 6 of the CSPA addresses the problem
encountered by Philippine F2-B applicants whose parents
naturalize. Automatic conversion from F2B to F1 at the
time of their parent''s naturalization disadvantages these
beneficiaries because the cutoff date for Philippine F1s is
earlier than the cutoff date for Philippine F2Bs.
Although this section continues to allow for the automatic
conversion of preference categories when a parent
naturalizes, it also permits the son/daughter beneficiary
to make a request to the Attorney General that such
conversion not occur. At this time, it is not known how
this request to the Attorney General will be made or what
formalities will be required.
20. The following will illustrate what a beneficiary would
consider before deciding whether to opt-out of an automatic
conversion from second to first preference:
-- Assume that for August 2002, the F2B cutoff date for
French unmarried sons and daughters of LPRs is December 8,
1993 and the F1 cutoff date for French unmarried sons and
daughters of Amcits is July 1, 1996. Thus, if a LPR files
a Form I-130 for his 14-year old, unmarried French son and
then naturalizes, the son''s immigrant category would
automatically convert from the second preference to the
first preference. In this example, this would work to the
advantage of the beneficiary and he would likely not
request that the automatic conversion be prevented in his
case.
-- In the cases involving Filipino unmarried sons or
daughters, the outcome of automatic conversion from second
to first preference is very different. For example, for
August 2002, the F2 cutoff date for Filipino unmarried
sons and daughters of LPRs is December 3, 1993, but the F1
cutoff date for Filipino unmarried sons and daughters of
Amcits is November 1, 1989. In this instance, the son
would likely request that the automatic conversion from
second to first preference not occur.
IMPLEMENTATION
---------------
21. As with the 45-day age-out cases described in ref B,
there will not be any short-term fix made to the IV system
for processing these visas. Currently, the IV system locks
cases for children who become 21 years old and converts
age-out cases to an adult son or daughter category on an
applicant''s twenty-first birthday. Posts will therefore
manually issue by typewriter any case that might qualify
under the Child Status Protection Act, as the system will
not adjust to allow consular processing for these cases.
The Department is studying changes to the IV software that
will allow the system to be used to issue these visas.
The following are instructions on how to issue IVs manually
for these cases:
Use NIV to do the requisite CLASS namecheck. Print out the
namecheck results. Retain one copy of the namecheck at post
and insert a second copy into the IV packet normally
produced for IV applicants; the adjudicating consular
officer should initial both copies of the namecheck
results.
Type all the information normally required on a blank OF-
155F form.
Add the notation: P.L. 107-208, Child Status Protection Act
to IVs issued under this act. Use the space on the OF-155A
directly under Immigrant Visa and Alien Registration at the
top center of the form. For K-4 beneficiaries, the MRV
should be similarly annotated.
22. To avoid problems for these applicants at POEs, posts
will include a memorandum as follows and place the memo on
top of the manually issued IV foil: (begin text of memo)
To: USCIS Inspector, POE From: US Embassy/Consulate (Name)
Date: Subject: Child Status Protection Act, Age-outs. This
visa was issued manually due to the constraints of the
Child Status Protection Act, and information will not
appear in IV DataShare. If you have any questions, please
contact the originating U.S. Embassy or Consulate or the
USCIS Forensic Document Lab. (end text of memo to USCIS).
23. Posts must report all manual issuances under the Child
Status Protection Act to the Department before the issued
visa foil is given to the applicant. For all IVs manually
issued under Section 424, post should send an e-mail to the
CA Support Desk and ask that a ticket be opened to make a
change in post''s database. Provide name and DOB of
applicant, visa class, case number, A-number (IV foil
number), date of issuance, date of expiration, foreign
state chargeability, and USERID of authorizing/adjudicating
officer.
24. In order to avoid unnecessary work for posts and to
minimize the possibility of issuances not making it into
the database in a timely fashion, visas should be issued to
expire after the actual 21st birthday only when the
applicant has either already reached his or her 21st
birthday or post believes that the applicant will likely
not be able to enter the U.S. prior to turning 21.
25. In order to ensure that applicants do not lose a
benefit to which they are legally entitled, in cases where
posts issue visas expiring on the actual 21st birthday to
applicants who can benefit from the Child Status Protection
Act, the applicants should be provided with a letter or
other written statement informing them that, should they be
unable to enter U.S. prior to turning 21, they are entitled
to issuance of a new visa with a later expiration date. In
such cases posts should issue a replacement visa without
charging the applicant for the new visa. Details of the
replacement visa should be reported to the CA Support Desk
as per instructions in reftel. The letter provided to the
applicant should include the following language:
"Eligibility in the immigrant visa category under which
your visa has been issued would normally terminate on your
21st birthday. The visa you are being issued today allows
you to enter the United States only until the day prior to
your 21st birthday. However, under the provisions of the
Child Status Protection Act you can continue to qualify for
immigration benefits past your 21st birthday. If for any
reason you are unable to enter the United States with your
immigrant visa prior to turning 21, this office can issue
you a replacement visa valid for a limited additional
period past your 21st birthday. If you find that you will
be unable to travel prior to your 21st birthday, please
contact this office prior to your 21st birthday by (post
should insert contact information here) so that we can
issue you a replacement visa."
26. NVC will attempt to determine if it is holding "age-
out" cases that meet the criteria of the CSPA and should
now be forwarded to post. Posts should also make every
effort to identify files held at post which include
applicants who can benefit form the CSPA, in particular:
--Cases in which post denied a visa on or after August
6 because an applicant aged out;
--Cases pending final adjudication from which
derivative beneficiaries have been excluded because
they turned 21.
--Cases pending at post which have been reclassified
from IR-2 to F-1 or from F-2A to F-2B because an
applicant turned 21.
27. Minimize considered.
POWELL
