What is the age-out clause?

Nandini P Nair explains the intricacies of the age-out clause in the Child Status Protection Act

Dear readers, on August 6, 2002, President Bush signed the Child Status Protection Act of 2002-Public Law 107-208. A cable from the Department of State provides two examples to illustrate the initial interpretation of the age-out clause under this Act.

The Act provides relief from the age-out clause 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 the purposes of the Act, 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. Please see below for the examples:

1. If a green card 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 (four 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, 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 (four years).

2. 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 two years, so only two years are deducted from his age at the time the priority date became current, making the alien 22.

In addition, the Immigration and Naturalisation Service published a notice on September 30, 2002 which set forth the condition that all individuals subject to the Special Registration requirement report to an approved port-of-entry prior to departure. A list of the approved ports of entry, as well as other information on the Special Registration requirement, is available on the INS website. The Special Registration requirements apply to nonimmigrant nationals of Sudan, Syria, Libya, Iran, and Iraq, as well as certain individuals meeting other specified criteria. At the present time, in addition to nationals of the countries named, it is interpreted to include male citizens and nationals of Pakistan, Saudi Arabia, and Yemen who are between 16 and 45 years of age, as well as other individuals who are identified as possible security risks. Please note that anyone who may have a visa stamp or work permit to Saudi Arabia, Yemen or Pakistan may also be stopped for questioning at the port of entry.

My H-1B is currently under processing. My employer has said that he has filed it under premium processing. What is premium processing? — Raj Kishore

The Premium Processing Programme is set aside for I-129 petitions, and provides the following service at an additional fee of $1,000 to the Immigration and Naturalisation Services:

• The INS guarantees a response within 15 calendar days from the date of receipt of the petition.
• If no response is received from the INS within 15 days, the fee will be refunded.
• If the INS requests additional evidence, the 15-day period will restart on receipt of this additional evidence by the INS.

The Premium Processing Programme can be requested at any time during the process. I am a resident of New Jersey, married to an Indian. At the time of my marriage I was a green card holder and had filed a green card petition for my husband. Now, I am a US citizen and wanted to know what I need to do to change his petition preference? — Suman Tilak

If your spouse is in the US and he enters the US legally, he will be eligible to file for his adjustment of status (Form I-485 package) in the United States. You will need to contact your local INS office for details. While doing so, you should present a copy of the sponsorship petition receipt and proof of your US citizenship. If your spouse is overseas, you should inform the INS where your petition is pending, by providing them with proof of your US citizenship and request them to “upgrade” your petition. You may also want to inform the US consulate in the country where your spouse is staying.