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  • Article: Immigration Benefits for Sons and Daughters of New Permanent Residents: Another Setback By Jan H. Brown

    Immigration Benefits for Sons and Daughters of New Permanent Residents: Another Setback

    by


    The U.S. Supreme Court recently restricted the use of the Child Status Protection Act so that certain children who turned 21 before their parent received a green card would have to go to the back of the line and start their wait all over again!

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    The Child Status Protection Act

    Originally passed by the U.S. Congress in 2002, the Child Status Protection Act permits immigrant children to not "age out." That is, they would retain their place on the waiting list for a green card as if they never became adults of 21 years of age or greater during their wait. Since immigrant children younger than 21 years of age can often get the same immigrant benefit as a parent simultaneously or soon thereafter, this anti-age-out law could be the difference between a united family or a shattered family. Adult children who have "aged out" may be vulnerable to being removed from the U.S. or marooned in another country for many years.

    The Priority Date System for Regulating the Flow of New Green Cards Explained

    When a case is started, by filing either an application with the U.S. Department of Labor (USDOL) or a petition with U.S. Citizenship and Immigration Services (USCIS), the date the case is received by the appropriate government agency is called its priority date. This system allows the government to speed up or slow down the number of green cards issued in any given category based on the priority date. However, the priority date calendar does not behave as does the regular year calendar. On a monthly basis, priority dates can advance more rapidly, move more slowly, or stall out altogether and not move at all.

    The best way to understand this is to think of a line to get into a movie theater that is so long that it stretches around the block so that it is not even possible to accurately predict how many people are in line waiting. Think of these people as the immigrants seeking green cards. Think of entrance into the movie theater as the time when a green card becomes available. If the theater holds 200 people and has three showings a day, which equals 600 people a day, this would be the quota for the people waiting. If more people are in line than originally estimated, then the wait time will be extended. If the first estimate was too low, then the projected wait time will be reduced because people can enter more easily. This is the basic concept behind the setting of priority date availability in the U.S. immigration system.

    What the U.S. Supreme Court Did

    In an unusual lineup of justices, with conservative and liberal judges joining together on both the majority and dissenting sides of the issue, the Supreme Court ruled 5-4 against those untold thousands of young immigrants who were included on their parents' visa petitions but "aged out" by turning 21 while the cases were still pending.

    Therefore, all of the time the children spent waiting with their parents will be extinguished, and the parents will have to file new petitions for their adult, unmarried children. As of August 2014, the priority date for the new category they will find themselves in, "unmarried sons and daughters of a permanent resident," is currently up to July 1, 2007, thus adding many years before the day will arrive when these people will finally be able to join U.S. society as legal residents.

    This situation constitutes not only another setback for intending immigrants and their families but a hardship for their communities as well. Loss of familial stability and decreased tax revenues due to fewer lawfully employed workers all sap the viability of a society.

    But that's a bigger story for another day....

    Originally published in The Huffington Post. Copyright by Jan Brown. Reprinted with permission.


    About The Author

    Jan H. Brown Jan H. Brown is a principal in the Law Offices of Jan H. Brown, P.C., centered in New York City. He has been practicing immigration and nationality law since 1979 and frequently lectures and writes on the subject of U.S. immigration law. Mr. Brown is a long time senior editor of AILA's Immigration and Nationality Handbook and editorial reviewer for Kurtzban's Immigration Law Sourcebook. His editorial cartoons have appeared in various publications, including Liberal Opinion Week and AILA's Immigration Law Today. Jan Brown represents clients across the immigration spectrum, from removal defense to EB-1 extraordinary ability workers. He is past chair of the AILA New York Chapter and currently co-chairs the New York State Bar Association's Immigration and Nationality Law Committee; as such he is active in efforts to reform our immigration system.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

    Comments 1 Comment
    1. catx's Avatar
      catx -
      It is looking like it will be another sad day for legal aliens when President Obama announces his expected executive actions for immigration 'fixes'.

      On one hand strong indications are that President Obama will provide relief to those who have knowingly and unquestionably broken the law by living in the United States without authorization, and further grant them unrestricted employment authorization.

      On the other hand the USCIS and the Department of Justice, administration departments directly under President Obama's control, have gone out of their way to narrowly construe the CPSA enacted by Congress to restrict benefits to legal aliens who expend considerable effort, time, and money to maintain their status and comply with the laws of the United States.

      There is much that can be said on this hypocrisy with respect to stated family unification and employment authorization. President Obama is showing that he is no different than other politicians -- a large voting block trumps justice, fairness, and the rule of law.
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