The Issue of Derivative Beneficiaries Aging Out at 21: Challenges, Impacts, and Solutions

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By Ashley Dawkins

The United States immigration system is known for its complexity and the significant challenges it poses to individuals and families seeking lawful permanent residency. Among these challenges is the issue faced by derivative beneficiaries who “age out” upon turning 21, rendering them ineligible for green cards through their parents’ petitions. This article provides a comprehensive analysis of the aging-out problem, its personal and legislative impacts, potential reforms, administrative solutions, strategies for aged-out beneficiaries to obtain green cards, and an explanation of the role of priority dates and whether they can be transferred.

Understanding the Aging-Out Problem

1. Legal Framework

The term “derivative beneficiary” refers to a child or spouse eligible to immigrate to the U.S. based on a family member’s approved immigrant petition. The Child Status Protection Act (CSPA), enacted in 2002, aims to address the challenges faced by children who might “age out” during the immigration process, thereby losing their eligibility as derivatives. The CSPA allows certain children to retain their classification as minors beyond their 21st birthday by freezing their age under specific conditions. However, this protection is not absolute and does not cover all scenarios, leading to significant issues for many young adults.

2. Implications of Aging Out

When a derivative beneficiary turns 21, they “age out” and are no longer considered a child for immigration purposes. This transition means they lose their eligibility to obtain a green card through their parent’s application. The abrupt change from child to adult in immigration terms can have life-altering consequences.

3. Limitations of the CSPA

The CSPA provides a formula for determining the child’s age based on the date of the visa petition and its approval, potentially subtracting the processing time from the child’s age. However, delays in visa availability and administrative backlogs can still result in children aging out despite the CSPA’s provisions.

Personal Impacts of Aging Out

1. Family Separation

Families often face heartbreaking decisions when a child ages out. For example, a family that has spent years waiting for their green card may find themselves separated if their child turns 21 before the visa is issued. The emotional and practical impacts on families are profound.

2. Uncertain Futures

Aging out can result in young adults losing legal status and becoming undocumented. This leads to limited access to education, employment, and healthcare, creating a precarious existence for those affected.

3. Emotional Toll

The uncertainty and fear associated with aging out can have severe psychological impacts on young adults and their families, contributing to stress, anxiety, and a sense of instability.

Case Studies

1. The Patel Family

The Patel family, originally from India, applied for green cards under the EB-3 category. Their son, Raj, was 17 at the time of application. Due to visa backlogs, Raj turned 21 before their priority date became current. Despite the CSPA, Raj aged out and had to remain in India while his parents and younger sister moved to the United States. This separation disrupted his education and family life.

2. The Garcia Family

Maria Garcia and her son, Carlos, moved to the U.S. when Carlos was 15. They applied for green cards through Maria’s employment. Carlos turned 21 during the waiting period and aged out. Carlos, now undocumented, struggles to find stable work and live without fear of deportation, while his mother holds a green card.

Legislative and Policy Context

1. Historical Context

The Immigration and Nationality Act (INA) of 1965 laid the foundation for the current immigration system but did not foresee the modern complexities and backlogs that would arise. The CSPA of 2002 was an attempt to mitigate some issues but fell short in fully addressing the aging-out problem.

2. Current Policies

Current immigration policies and administrative practices contribute to the delays and uncertainties that exacerbate the aging-out issue. Visa backlogs, lengthy processing times, and the lack of comprehensive immigration reform have all played a role.

3. Proposed Reforms

Various legislative proposals have been put forward to address the aging-out problem, including expanding the CSPA’s protections and streamlining visa processing. However, these proposals have often stalled in Congress, reflecting the broader challenges of achieving immigration reform.

Potential Solutions for Aged-Out Beneficiaries

1. Legislative Reform

      A. Expansion of the Child Status Protection Act (CSPA)

• Enhanced Age Calculation: Reforming the CSPA to provide a more generous age calculation formula could help more children retain their eligibility as derivatives. This could involve subtracting additional time spent in administrative processing from their age or providing blanket coverage until a visa becomes available.
• Universal Coverage: Ensuring that the CSPA covers all children up to 21, regardless of the specific visa category, would be a significant step forward. Currently, some categories and circumstances are not adequately addressed by the CSPA.

      B. Independent Visa Categories for Aged-Out Beneficiaries

• New Visa Classifications: Creating new visa classifications specifically for aged-out beneficiaries would allow these individuals to apply for green cards independently of their parents’ applications. This could involve special provisions for those who have been living in the U.S. for an extended period or who were previously eligible under their parents’ petitions.

      C. Family Reunification Prioritization

• Reuniting Families Act: Introducing legislation that prioritizes the reunification of families separated due to aging out would reflect the importance of family unity in immigration policy. This could include expedited processing and priority consideration for family-based petitions involving aged-out beneficiaries.

2. Administrative Actions

      A. Improving Processing Times

• Increased Funding and Staffing: Allocating more resources to USCIS to reduce backlogs and improve processing times would directly benefit families and reduce the likelihood of children aging out due to administrative delays.
• Efficiency Measures: Implementing technological improvements and streamlined procedures can further enhance processing efficiency. This could involve modernizing IT systems and adopting best practices from other countries with more efficient immigration systems.

      B. Enhanced Communication and Guidance

• Clear Guidance on CSPA: Providing clearer and more detailed guidance to families and immigration attorneys about the CSPA and how to navigate its provisions can help prevent misunderstandings and ensure that families take full advantage of available protections.
• Proactive Updates: USCIS should proactively update families about the status of their applications and any potential risks of aging out. This can include regular status updates and alerts as children approach their 21st birthday.

3. Community Support and Legal Assistance

      A. Non-Profit Organizations and Advocacy Groups

• Legal Aid and Representation: Non-profits and advocacy groups can provide crucial legal assistance to families navigating the complexities of the immigration system. This includes help with applications, appeals, and understanding eligibility for various protections.
• Awareness Campaigns: Raising awareness about the aging-out issue and available resources through community outreach and education campaigns can empower families to take proactive steps to protect their children.

      B. Support Networks and Counseling

• Mental Health Support: Providing mental health support and counseling for families dealing with the stress and uncertainty of the aging-out issue can help mitigate the emotional toll. Community organizations can offer these services directly or partner with mental health professionals.
• Peer Support Groups: Establishing peer support groups where families can share experiences and advice can create a sense of community and provide practical tips for navigating the system.

4. Personal Strategies for Families

      A. Early Planning and Preparation

• Legal Consultation: Families should seek legal consultation early in the immigration process to understand potential risks and prepare accordingly. An immigration attorney can help develop strategies to avoid aging out, such as applying for alternative visas or pursuing different pathways to legal status.
• Documentation and Record-Keeping: Maintaining thorough records and documentation of all immigration-related activities is crucial. This can help demonstrate eligibility for protections under the CSPA or support future applications.

      B. Exploring Alternative Pathways

• Student Visas (F-1): For children approaching 21, applying for student visas can provide a temporary solution to remain in the U.S. legally while continuing their education. This can also provide time to explore other long-term immigration options.
• Employment-Based Visas: If aged-out beneficiaries have employment opportunities, pursuing employment-based visas (such as H-1B) can be another pathway to legal status. This requires securing a job offer from a U.S. employer willing to sponsor the visa.

      C. Advocacy and Political Engagement

• Engaging with Lawmakers: Families and community organizations can engage with lawmakers to advocate for legislative changes. Sharing personal stories and highlighting the impacts of aging out can influence policy decisions and garner support for reform.
• Public Campaigns: Launching public campaigns to raise awareness and build public support for aged-out beneficiaries can pressure policymakers to take action. Social media, petitions, and partnerships with advocacy groups can amplify these efforts.

Priority Dates and Transferability

1. Understanding Priority Dates

Priority dates are a critical component of the U.S. immigration process. When a family-based or employment-based immigrant petition is filed, it receives a priority date, which determines the applicant’s place in line for a visa. This date is essential in categories subject to annual numerical limits, as it dictates when the applicant can move forward with their application.

2. Can Priority Dates Be Transferred?

Generally, priority dates are tied to the specific petition and the beneficiary for whom it was filed. However, there are circumstances under which a priority date can be retained or transferred:

      A. Family-Based Immigration

• Retaining Priority Dates: If a derivative beneficiary ages out and later qualifies for a different family-based category, they may retain the original priority date of their parent’s petition. For example, if an aged-out beneficiary is later sponsored by their U.S. citizen parent as an adult child, they can often keep the priority date from the original petition filed when they were a derivative.

      B. Employment-Based Immigration

• Priority Date Retention: In employment-based immigration, if an individual changes employers but continues to qualify for an employment-based green card, they can usually retain the original priority date from the first approved Form I-140 petition. This provision allows aged-out beneficiaries who transition to employment-based categories to maintain their place in line, avoiding further delays.

       C. Challenges and Limitations

While retaining priority dates can help mitigate some issues, it does not fully resolve the problem of aging out. The process can be complex, and the specific circumstances of each case will determine eligibility for retaining or transferring priority dates. Legal assistance is often necessary to navigate these complexities effectively.

Pathways to a Green Card for Aged-Out Derivative Beneficiaries

1. Family-Based Immigration

       A. Family Preference Categories

Once a derivative beneficiary ages out, they may still be eligible for a green card through a family preference category if they have immediate relatives who are U.S. citizens or lawful permanent residents (LPRs).

• Immediate Relative Petition: If the aged-out beneficiary’s parent becomes a U.S. citizen, the parent can file an I-130 petition on behalf of their adult child as an immediate relative. Immediate relatives of U.S. citizens are not subject to numerical limits or waiting periods, which can expedite the process.
• Family Preference Category: If the aged-out beneficiary’s parent is an LPR, the parent can file an I-130 petition for their adult child under the F2B category (unmarried sons and daughters of LPRs). This category is subject to annual caps and waiting periods, but it remains a viable option.

      B. Sibling Petition

If the aged-out beneficiary has a sibling who is a U.S. citizen, the sibling can file an I-130 petition for them under the F4 category (siblings of U.S. citizens). This process can take many years due to long waiting periods, but it provides a pathway to a green card.

2. Employment-Based Immigration

      A. Employment-Based Green Cards

Aged-out beneficiaries can seek employment-based green cards if they have the necessary qualifications and an employer willing to sponsor them. There are several employment-based (EB) categories:

• EB-1: For individuals with extraordinary ability, outstanding professors and researchers, and multinational executives or managers.
• EB-2: For professionals with advanced degrees or exceptional ability.
• EB-3: For skilled workers, professionals, and other workers.

The process involves the employer filing a Form I-140 (Immigrant Petition for Alien Worker) and the aged-out beneficiary adjusting their status through Form I-485 (Application to Register Permanent Residence or Adjust Status) if they are already in the U.S. or applying for a visa through consular processing if they are abroad.

      B. National Interest Waiver (NIW)

The EB-2 NIW category allows individuals with exceptional ability or advanced degrees to self-petition for a green card if they can demonstrate that their work is in the national interest of the United States. This can be a viable option for highly skilled aged-out beneficiaries without needing an employer sponsor.

3. Student Visas and OPT to Green Card

      A. F-1 Student Visa

Aged-out beneficiaries can pursue higher education in the U.S. on an F-1 student visa. This visa allows them to study at accredited institutions and potentially qualify for Optional Practical Training (OPT), which provides temporary employment authorization for up to 12 months (or 24 months for STEM graduates) after completing their studies.

      B. Transition from OPT to H-1B

During or after OPT, aged-out beneficiaries can seek H-1B visas, which are non-immigrant work visas for specialty occupations. The H-1B visa allows them to work in the U.S. for up to six years, during which time their employer can sponsor them for an employment-based green card.

4. Diversity Visa Lottery

      A. Diversity Immigrant Visa Program

The Diversity Visa (DV) Lottery, commonly known as the green card lottery, offers another potential pathway. Each year, the U.S. government provides up to 55,000 diversity visas to individuals from countries with low rates of immigration to the U.S. Aged-out beneficiaries who meet the eligibility requirements can apply for the DV lottery and, if selected, can apply for a green card.

5. Humanitarian Programs

      A. Asylum and Refugee Status

If an aged-out beneficiary faces persecution in their home country, they may be eligible for asylum or refugee status in the U.S. Asylum can be granted to individuals who are already in the U.S. and can demonstrate a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion.

      B. Special Immigrant Juvenile Status (SIJS)

For aged-out beneficiaries who are under 21 and have been abused, abandoned, or neglected by one or both parents, SIJS provides a pathway to a green card. SIJS requires a state juvenile court order and approval from USCIS.

6. Other Potential Options

      A. Temporary Protected Status (TPS)

Aged-out beneficiaries from countries experiencing ongoing armed conflict, environmental disasters, or other extraordinary conditions may qualify for TPS, which provides temporary legal status and work authorization. While TPS does not lead directly to a green card, beneficiaries can seek other immigration relief while under TPS protection.

      B. Deferred Action for Childhood Arrivals (DACA)

Although DACA does not provide a direct path to a green card, aged-out beneficiaries who arrived in the U.S. as children and meet specific criteria may qualify for DACA. This program grants temporary protection from deportation and work authorization, allowing beneficiaries to pursue other immigration options.

7. Legal and Community Support

      A. Legal Assistance

Navigating the U.S. immigration system can be complex, and aged-out beneficiaries should seek legal assistance from qualified immigration attorneys. Attorneys can provide tailored advice, help prepare applications, and represent individuals in immigration proceedings.

      B. Community Resources

Non-profit organizations and community groups often offer resources and support for aged-out beneficiaries. These organizations can provide legal aid, counseling, and advocacy services to help individuals understand their options and pursue the best pathway to a green card.

Conclusion

The issue of derivative beneficiaries aging out at 21 is a complex and multifaceted problem with significant personal and societal impacts. While the Child Status Protection Act provides some relief, it is insufficient to address the broader challenges faced by these young adults and their families. Comprehensive legislative and administrative reforms are necessary to ensure that families can stay together and that young adults who have grown up in the U.S. can continue to contribute to their communities.

By implementing legislative reforms to expand the protections of the CSPA, creating independent visa categories, prioritizing family reunification, improving processing times, and providing clear guidance, the U.S. can mitigate the impacts of aging out. Community support, legal assistance, and personal strategies for early planning and exploring alternative pathways can empower families and aged-out beneficiaries to navigate the complex immigration landscape.

Ultimately, addressing the aging-out issue requires a collective effort from lawmakers, government agencies, non-profits, and communities. By prioritizing family unity, recognizing the economic and social contributions of immigrants, and ensuring that all residents have the opportunity to thrive, the U.S. can create a fairer and more just immigration system.

References

1. U.S. Citizenship and Immigration Services. (n.d.). Child Status Protection Act (CSPA). Retrieved from USCIS.
2. American Immigration Council. (2021). The Dream Act, DACA, and Other Policies Designed to Protect Dreamers. Retrieved from American Immigration Council.
3. Congressional Research Service. (2020). U.S. Immigration Policy: Chart Book of Key Trends. Retrieved from CRS Reports.
4. National Immigration Forum. (2021). Fact Sheet: U.S. Immigration and Family Separation. Retrieved from National Immigration Forum.
5. Immigration, Refugees and Citizenship Canada. (2021). Family Sponsorship. Retrieved from Government of Canada.
6. Department of Home Affairs, Australian Government. (2021). Family Visa Options. Retrieved from Home Affairs.