Foreign-born children of US citizens

October 30, 2007  --  Got something to say?
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J.G. Azarcon - Immigration NotesThe Child Status Protection Act that became effective in 2001 ensures that children born to American citizen parents outside the United States do not lose their priority in line for permanent residence status when they turn 21.
Foreign-born children under 21 of American citizens are classified as immediate relatives entitled to immediate consideration for immigrant visa issuance. They are not included in the four groups of family-based preference categories and do not have to wait for a preference quota.

Although an immigrant visa is immediately available for children under 21 of US citizen parents, the administrative processing takes time, usually several months. In some cases, due to backlogs and where the visa petition is filed when the child is about to turn 21, the children age-out before they are called for a visa interview. The consequence before this amendment took effect was that the visa petition would be automatically reclassified as first preference family-based petition covering unmarried children of US citizens under 21 years of age. For beneficiaries from the Philippines, that means additional long wait considering that the priority date for first preference family-based categories is running more than thirteen years behind.

Under this amended law, immediate relative status is determined when the application is filed, not when INS completes its processing. In effect, immediate relative status which entitles the alien to immediate consideration for visa issuance is preserved even after the alien turns 21 years before the actual issuance of the immigrant visa. The amendments benefit an alien who aged out on or after the effectivity of the Act on August 6, 2002.

As for an alien who aged out prior to August 6, 2002, an INS memorandum says that the only exception allowed by the Act is if the petition for classification was pending on or after August 6, 2202; or the petition was approved before August 6, 2002, but no final determination had been made on the beneficiarys application for an immigrant visa or adjustment of status to lawful permanent residence pursuant to such approved petition. For purposes of determining whether an alien aged out before or after August 6, 2002, the Child Protection Act provides that an alien who is the beneficiary of a petition filed before September 11, 2001 remains eligible for child status for 45 days after turning 21.

In addition to immediate relative and direct beneficiary family-based preference categories, the Act also applies to derivative beneficiaries in both family-based and employment-based preference categories. With respect to the employment based category, the beneficiarys age is to be calculated by first determining the age of the alien on the date that a visa number becomes available as indicated in the DOS Visa Bulletin.

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Posted by News Team | Filed Under Immigration Corner 

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One Response to “Foreign-born children of US citizens”

  1. Maru C. Arellano on October 30th, 2007 9:41 pm

    On Erap’s Case: I hope the move is for reconciliation purposes but always remember what our lolos and lolas told us: Pay may kasalanan, bigyan ng leksyon, parusahan para hindi na parisan at ulitin. If they think that they are innocent of the crime committed, so be it, God never sleeps

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