Turning 21 Not Cause to Celebrate for Some Foreign Nationals in the U.S.

For many young people in the U.S., turning 21 is a happy and exciting time.  However, for many foreign born children, it can be a time of uncertainty and stress. For many of these young people, turning 21 means “aging out” for immigration purposes and facing the possibility of having to leaving the U.S.  Under current Immigration law, “child” is usually defined as an individual who is unmarried and under the age of 21.   While the Child Status Protection Act (CSPA) of 2002 has provided some protection for many intending-immigrant children, there are still a number of categories that face uncertainty.

One example, as AILA posted in a recent blog, is the situation of Lauren Gray. Lauren has been in legal status in the U.S. since the age of 4 and her green card paperwork has been filed and pending since she was 12.  Lauren turns 21 next month with no visa numbers currently available in the category under which her petition was filed. Since her case is not approved and her priority date is not current, she may be forced to leave the U.S.  This back log is due to the limitations on numbers of visas offered annually that was set by Congress back in 1990. The number of visas made available on an annual basis has not kept up with demand. For example, the Employment-based category, 3rd preference is backed up to 2006, while the 3rd preference Family-based category is retrogressed to 2002. For citizens of China, India, Mexico and the Philippines, wait times may stretch back as far as the early 1990s.

One solution to this back log, is to change the current immigration wording. In 1976, Congress amended INA § 245(a) by substituting “filed” for the word “approved.” If Congress amended the language back to “filed” this would allow a person to file the adjustment of status application while waiting for their priority date to be reached. This would keep the family unit together and prevent “aging out.” It would also put the celebration back into turning 21.

If you have questions regarding your immigration options, either for permanent or temporary residence in the United States, contact us to schedule a consultation with one of our attorneys.

Page Summary:  While the CPSA offers protection against “aging out” to many individuals, there are still some who face uncertainty over their futures in the U.S.

 

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