susie
07-15 11:30 AM
1 of 2 posts
Default No Protection for Nonimmigrant Children Because of the Age-Out Problem
No Protection for Nonimmigrant Children Because of the Age-Out Problem
The Impact US Immigration Laws on Children
The impact of US immigration laws on children generally is profound. This is due to the fact these laws are complex and are written substantially with adults in mind. Overall the immigrant laws try to balance various and sometimes competing aims including (but in no particular order):
* Improving the economy by providing access to skilled foreign workers and investors;
* Ensuring family unification, for citizens, permanent residents and nonimmigrant residents;
* Promoting diversity, such as through the lottery program; and
* Maintaining the security of the nation, through border controls, immigration checks etc.
This article focuses primarily on the issue of family reunification and looks at one specific area in which the US immigration system is failing; the rights of children. One of the intriguing aspects of US laws is the concept of age outs. This separates two categories of children; those under the age of 21 and those who have attained the age of 21.
For example, in relation to immigrant petitions where a family member is being sponsored, the petition may also apply to the spouse and children of the family member being sponsored, but only where the children are under 21 years of age. Unfortunately, immigrant visa processing can take many years depending on the category of sponsorship and, while the petition is pending, many children age out (turn 21 and are removed from the pending petition). This results in situations where siblings are split because the younger ones can immigrate by the time the petition is processed (because they are still under 21), but the older siblings cannot (because they turned 21 while the immigrant petition was pending). The Child Status Protection Act of 2002 aims to address this issue, but does not deal with all circumstances and is not always appropriately implemented causing many families to split.
Another example, and which this article focuses on, relates to nonimmigrant visa holders. Many nonimmigrant visa categories enable the foreign national (�alien�) visa holder to bring their family with them, including their spouse and children (who are under 21). A child could come to the USA, including when they are babies, be brought up in the USA but when they reach 21, unless they have another right to remain in the country, they are forced to go to their country of citizenship or any other country willing to invite them. However, they would have to leave their home and their family in the USA.
Children as Derivative Nonimmigrant Visa Holders with no Direct Path to Permanent Residency
US immigration laws enable many aliens to come to the USA for various purposes. This includes, but is not limited to:
* Investing in the USA, either directly through an E2 visa or through an expansion of a non-US business into the USA through an L1 visa (which enables intercompany transferees);
* Employment opportunities, so US employers could petition an alien on a nonimmigrant basis (for example H-1B (specialty occupations), H-1B1 (Chile/Singapore Free Trade Agreement) and H-1C (nurses)) or multinational businesses with US operations could transfer an alien to its operations in the USA through an L1 visa;
* Aliens with extraordinary ability or achievement through an O1 visa and other workers to assist in the performance of O1 workers through an O2 visa; and
* Religious workers through an R-1 visa.
The above examples are (non-exhaustive) examples of visas on which aliens enter and reside in the USA for a long-term basis. Such nonimmigrant visa holders may also bring their spouse and/or children with them as nonimmigrant holders. These visas for spouses and children are known as �derivative� visas and are valid for as long as the �principal� visa is valid. For example, if an H-1B employee loses their job without getting a new job, not only do they lose their visa status but so do the derivative visa holders.
At first glance this seems to be a reasonable state of affairs. However, there is a unique, but not uncommon, problem that results from �aging out,� i.e. where children who were under 21 come to the USA but lose their derivative visa status on their 21st birthday. They must leave the USA, in effect their home, unless they have another basis to stay home. They will also be split from their Parents and younger siblings who will be subject to same problem when they turn 21, unless of course they were born in the USA in which case they are US citizens (this right does not apply to the children of any person in the USA in the capacity of a foreign diplomat).
Jack, Mary and Sundeep
Consider this. Two children, Jack and Sundeep, come to the USA from the UK as children, because their respective parents are nonimmigrant visa holders. They have no choice in the matter because separation from their families is clearly not an option.
Jack lives in Detroit, Michigan and lived there ever since he arrived in the USA as a derivative visa holder during his kindergarten years. Sundeep lives in Long Island, New York and arrived in the USA as a derivative visa holder when he was 13. Jack and Sundeep both went to high school in their local areas. Jack went to a State funded school and Sundeep went to a privately-funded school. Both Jack and Sundeep have fully established their lives in the USA.
Jack remembers only his US life since he came at such a young age. He embraces his new life, develops friendships and fully integrates into US society by being schooled under the US system. He has an American accent since he was five. Culturally, he is American in every way. He loves his Pizza, hangs out with his school friends, and loves watching films and playing sports. He does very in school. He maintains a 4.0 GPA, is captain of the football team has been elected class President. He aspires to go to university. He wants in particular to go to the University of Michigan and play for the Michigan Wolverines. He is smart enough and good enough to do both.
Sundeep came to the USA much later. He has clear memories of his life in the UK. At first he found it very difficult to adjust to the new system. He had no friends and had to work hard to build friends. He loves soccer and was a West Ham supporter in the UK. He continues to be so. However, people aren�t into soccer in his school. However, by the time he turns 15, Sundeep has made a lot of effort to change. He is fully comfortable with the school system, has grown to understand and love basketball and football, and has made many friends. He is an above average student academically, but does not really have any aspirations to go to university.
Jack sees himself as American in every way. Sundeep also sees himself as an American but realizes and appreciates he has some differences giving him a unique US-UK-Indian cultural identity. Both fully support America in every way including singing the national anthem whenever the opportunity arises such as in school.
Jack also has younger sister, Mary. She was born in the USA and so has a constitutional (14th Amendment) based right to US citizenship. However both siblings have very different rights. When Jack turns 18 he can�t vote, but Mary can vote when she turns 18. Jack can�t join the military, but Mary can. It�s very strange how two people brought up in the same environment can be subject to very different treatment.
Limited Solutions to Aging Out
Adjustment to Permanent Residency Status
The age out problem can be partly circumvented in various but specific ways. However, this means children who have been in the USA for long periods before turning 21 can be subject to very different treatment, simply based on the type of visa their Parent(s) entered the USA on and the type of visa they currently hold.
For example L1 visa holders and employee visa holders may adjust their status to permanent residency. Their employer may later sponsor them for a new employment-based immigrant visa and once this is processed an employee may adjust, with his or her spouse and children (under 21) to permanent resident status.
Most E-2 visa holders do not have a basis to convert to permanent residency. One rare exception may be where the business expands to an investment value of $500,000 in low employment areas or $1million in all other areas and has 10 permanent employees comprised of US citizens and/or permanent residents. In these circumstances the E-2 visa holder may convert to permanent residency on the basis of an EB-5 application. How many businesses in the USA owned by foreign national meet these criteria? Very few! Another rare exception may be where an E-2 visa holder is a single parent and marries a US citizen so that they may apply for an immigrant visa with the children as derivatives. They have to wait for the visa to be processed by the USCIS, but once approved there is no further wait required with the National Visa Center.
However, the permanent residency solution is exceptional. They do not help the children whose parents remain in nonimmigrant status. Further, even where a Parent does become a permanent resident, it does not help children who already reached 21 before an immigrant petition is approved.
Default No Protection for Nonimmigrant Children Because of the Age-Out Problem
No Protection for Nonimmigrant Children Because of the Age-Out Problem
The Impact US Immigration Laws on Children
The impact of US immigration laws on children generally is profound. This is due to the fact these laws are complex and are written substantially with adults in mind. Overall the immigrant laws try to balance various and sometimes competing aims including (but in no particular order):
* Improving the economy by providing access to skilled foreign workers and investors;
* Ensuring family unification, for citizens, permanent residents and nonimmigrant residents;
* Promoting diversity, such as through the lottery program; and
* Maintaining the security of the nation, through border controls, immigration checks etc.
This article focuses primarily on the issue of family reunification and looks at one specific area in which the US immigration system is failing; the rights of children. One of the intriguing aspects of US laws is the concept of age outs. This separates two categories of children; those under the age of 21 and those who have attained the age of 21.
For example, in relation to immigrant petitions where a family member is being sponsored, the petition may also apply to the spouse and children of the family member being sponsored, but only where the children are under 21 years of age. Unfortunately, immigrant visa processing can take many years depending on the category of sponsorship and, while the petition is pending, many children age out (turn 21 and are removed from the pending petition). This results in situations where siblings are split because the younger ones can immigrate by the time the petition is processed (because they are still under 21), but the older siblings cannot (because they turned 21 while the immigrant petition was pending). The Child Status Protection Act of 2002 aims to address this issue, but does not deal with all circumstances and is not always appropriately implemented causing many families to split.
Another example, and which this article focuses on, relates to nonimmigrant visa holders. Many nonimmigrant visa categories enable the foreign national (�alien�) visa holder to bring their family with them, including their spouse and children (who are under 21). A child could come to the USA, including when they are babies, be brought up in the USA but when they reach 21, unless they have another right to remain in the country, they are forced to go to their country of citizenship or any other country willing to invite them. However, they would have to leave their home and their family in the USA.
Children as Derivative Nonimmigrant Visa Holders with no Direct Path to Permanent Residency
US immigration laws enable many aliens to come to the USA for various purposes. This includes, but is not limited to:
* Investing in the USA, either directly through an E2 visa or through an expansion of a non-US business into the USA through an L1 visa (which enables intercompany transferees);
* Employment opportunities, so US employers could petition an alien on a nonimmigrant basis (for example H-1B (specialty occupations), H-1B1 (Chile/Singapore Free Trade Agreement) and H-1C (nurses)) or multinational businesses with US operations could transfer an alien to its operations in the USA through an L1 visa;
* Aliens with extraordinary ability or achievement through an O1 visa and other workers to assist in the performance of O1 workers through an O2 visa; and
* Religious workers through an R-1 visa.
The above examples are (non-exhaustive) examples of visas on which aliens enter and reside in the USA for a long-term basis. Such nonimmigrant visa holders may also bring their spouse and/or children with them as nonimmigrant holders. These visas for spouses and children are known as �derivative� visas and are valid for as long as the �principal� visa is valid. For example, if an H-1B employee loses their job without getting a new job, not only do they lose their visa status but so do the derivative visa holders.
At first glance this seems to be a reasonable state of affairs. However, there is a unique, but not uncommon, problem that results from �aging out,� i.e. where children who were under 21 come to the USA but lose their derivative visa status on their 21st birthday. They must leave the USA, in effect their home, unless they have another basis to stay home. They will also be split from their Parents and younger siblings who will be subject to same problem when they turn 21, unless of course they were born in the USA in which case they are US citizens (this right does not apply to the children of any person in the USA in the capacity of a foreign diplomat).
Jack, Mary and Sundeep
Consider this. Two children, Jack and Sundeep, come to the USA from the UK as children, because their respective parents are nonimmigrant visa holders. They have no choice in the matter because separation from their families is clearly not an option.
Jack lives in Detroit, Michigan and lived there ever since he arrived in the USA as a derivative visa holder during his kindergarten years. Sundeep lives in Long Island, New York and arrived in the USA as a derivative visa holder when he was 13. Jack and Sundeep both went to high school in their local areas. Jack went to a State funded school and Sundeep went to a privately-funded school. Both Jack and Sundeep have fully established their lives in the USA.
Jack remembers only his US life since he came at such a young age. He embraces his new life, develops friendships and fully integrates into US society by being schooled under the US system. He has an American accent since he was five. Culturally, he is American in every way. He loves his Pizza, hangs out with his school friends, and loves watching films and playing sports. He does very in school. He maintains a 4.0 GPA, is captain of the football team has been elected class President. He aspires to go to university. He wants in particular to go to the University of Michigan and play for the Michigan Wolverines. He is smart enough and good enough to do both.
Sundeep came to the USA much later. He has clear memories of his life in the UK. At first he found it very difficult to adjust to the new system. He had no friends and had to work hard to build friends. He loves soccer and was a West Ham supporter in the UK. He continues to be so. However, people aren�t into soccer in his school. However, by the time he turns 15, Sundeep has made a lot of effort to change. He is fully comfortable with the school system, has grown to understand and love basketball and football, and has made many friends. He is an above average student academically, but does not really have any aspirations to go to university.
Jack sees himself as American in every way. Sundeep also sees himself as an American but realizes and appreciates he has some differences giving him a unique US-UK-Indian cultural identity. Both fully support America in every way including singing the national anthem whenever the opportunity arises such as in school.
Jack also has younger sister, Mary. She was born in the USA and so has a constitutional (14th Amendment) based right to US citizenship. However both siblings have very different rights. When Jack turns 18 he can�t vote, but Mary can vote when she turns 18. Jack can�t join the military, but Mary can. It�s very strange how two people brought up in the same environment can be subject to very different treatment.
Limited Solutions to Aging Out
Adjustment to Permanent Residency Status
The age out problem can be partly circumvented in various but specific ways. However, this means children who have been in the USA for long periods before turning 21 can be subject to very different treatment, simply based on the type of visa their Parent(s) entered the USA on and the type of visa they currently hold.
For example L1 visa holders and employee visa holders may adjust their status to permanent residency. Their employer may later sponsor them for a new employment-based immigrant visa and once this is processed an employee may adjust, with his or her spouse and children (under 21) to permanent resident status.
Most E-2 visa holders do not have a basis to convert to permanent residency. One rare exception may be where the business expands to an investment value of $500,000 in low employment areas or $1million in all other areas and has 10 permanent employees comprised of US citizens and/or permanent residents. In these circumstances the E-2 visa holder may convert to permanent residency on the basis of an EB-5 application. How many businesses in the USA owned by foreign national meet these criteria? Very few! Another rare exception may be where an E-2 visa holder is a single parent and marries a US citizen so that they may apply for an immigrant visa with the children as derivatives. They have to wait for the visa to be processed by the USCIS, but once approved there is no further wait required with the National Visa Center.
However, the permanent residency solution is exceptional. They do not help the children whose parents remain in nonimmigrant status. Further, even where a Parent does become a permanent resident, it does not help children who already reached 21 before an immigrant petition is approved.
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WeldonSprings
05-02 04:15 PM
I know everyone has looked at the Visa Bulletin. Here is a quote from it-
2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.
So, don't you guys think that there more than 140,000 visas can be given away, if need me as it is this moment. So, I don't understand the retrogression???
It really appeared to me that by the way lofgren asked the questions, and her comments (So recapturing is first step, She mentions "i will let the co-author know that you like the bill to uscis/state dept officials" etc. See the video again if u missed it out) makes me think they will go ahead and introduce in house for voting. What happens in the house is upto your speculation. Lets cross the fingers and wait for updates.
by the way they have 5 business days to ask any questions or clarifications which will end on Wednesday, So until then lets sit tight.
2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.
So, don't you guys think that there more than 140,000 visas can be given away, if need me as it is this moment. So, I don't understand the retrogression???
It really appeared to me that by the way lofgren asked the questions, and her comments (So recapturing is first step, She mentions "i will let the co-author know that you like the bill to uscis/state dept officials" etc. See the video again if u missed it out) makes me think they will go ahead and introduce in house for voting. What happens in the house is upto your speculation. Lets cross the fingers and wait for updates.
by the way they have 5 business days to ask any questions or clarifications which will end on Wednesday, So until then lets sit tight.
Suva
07-18 02:17 PM
He is absolutely correct. 485 Processing would start depending on RD (Receipt Date). But at the time of approval PD should be current and if it is current then the applicant whose RD (Receipt Date) is oldest would get the approval first.
receipt date if your PD is current.
receipt date if your PD is current.
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JazzByTheBay
09-29 07:43 AM
Except, Franklin is not from a retrogressed country.... :)
jazz
But I think franklin posted earlier that she got her GC when the priority dates are not current. And shows about 5 EB3s from India got approvals during September whos PDs are on or after 2003.Do you think USCIS might have requested the visa number for their cases when their PD was current?
jazz
But I think franklin posted earlier that she got her GC when the priority dates are not current. And shows about 5 EB3s from India got approvals during September whos PDs are on or after 2003.Do you think USCIS might have requested the visa number for their cases when their PD was current?
more...
chanduv23
05-19 10:39 AM
ANOTHER UPDATE
soft LUD on my second MTR for 05/18/2009
soft LUD on my I-485 for 05/18/2009
But the content remains the same:
as "Case received and pending" on my second MTR
as "Denial Notice Sent" on my I-485
Chill. Your case has been reopened. If you are really worried, take an infopass and talk to an IO. They will fill out a case sheet and give you the status.
soft LUD on my second MTR for 05/18/2009
soft LUD on my I-485 for 05/18/2009
But the content remains the same:
as "Case received and pending" on my second MTR
as "Denial Notice Sent" on my I-485
Chill. Your case has been reopened. If you are really worried, take an infopass and talk to an IO. They will fill out a case sheet and give you the status.
agr
08-12 09:29 PM
Just curious to know .. Does this law apply to renewals as well or just new H1B applications ?
Thanks --agr
Thanks --agr
more...
jonty_11
07-06 12:29 PM
Have all those visas made available been used up so far by USCIS? I doubt it.
They are not coming clean on this...first they said they used up 60K visas, now they are saying they worked over wkend to use 25K VISAS...
Its a big scandal....Just to prevent us from filing...
They are not coming clean on this...first they said they used up 60K visas, now they are saying they worked over wkend to use 25K VISAS...
Its a big scandal....Just to prevent us from filing...
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pappu
02-09 08:40 PM
Thanks Pappu. I have scheduled next conf call for Friday, 2/9 at 7.00 PM PST. Call 641-297-5900 PassCode 562404. Would you care to join?
I am joining.
I am joining.
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nirav_patel
07-15 03:34 PM
just sent by billpay
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conundrum
04-30 03:17 PM
the chair person has just asked the best question of the day, about EB2 person having to wait even though the DOL has approved their case
more...
yoyo12
07-28 09:39 PM
Hi everybody,
I want to know if somebody knows what is going on with Atlanta perm lab center?I applied in Feb 2007 for perm labor and I checked my staus online almost every day.In jUNE 2007 IT SAID ''CERTIFIED''.My lawyer was waiting for the paper in mail..I checked again the status in July 2007and it said ''In progress''.Can somebody explain for me why is like that? What advice do you give me?
Thank you very much....
I want to know if somebody knows what is going on with Atlanta perm lab center?I applied in Feb 2007 for perm labor and I checked my staus online almost every day.In jUNE 2007 IT SAID ''CERTIFIED''.My lawyer was waiting for the paper in mail..I checked again the status in July 2007and it said ''In progress''.Can somebody explain for me why is like that? What advice do you give me?
Thank you very much....
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Mouns
04-30 03:29 PM
OK so here it is, it will get 2 years before the backlogs due to the surge clear and to get back to normal... :mad:
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digital2k
05-13 02:34 PM
Don't wait any longer
Everyone must call
Thank You for helping Yourslef
Everyone must call
Thank You for helping Yourslef
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bostonian28
08-06 05:23 PM
I think we need to emphasize the fact that typically guys who got stuck in BEC for many years are the same guys being effected again, as they just got out of BEC queue and filled concurently and now basically are stuck again, it is really ridiculous experience for this group of applicants, where as people who have applied in PERM or those who were able to get LC certified without getting into BEC have gone through the whole process relatively smoothly....
My 2 cents, based on my experience.
My 2 cents, based on my experience.
more...
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softcrowd
01-06 10:56 PM
How come observations made over years on 100's to 1000's of students are "unsubstantiated"? Of course you may want not to believe me; that is your prerogative, and so is writing my own experience mine.
raysaikat - You must be kidding by trying to prove that you have taught 1000s of Anna/Osmania University students & number of them are bad as you described. You started in 100s & are now talking about thousands and I am sure if this argument continues you would go to even higher numbers just for the heck of proving your point. After all, its a matter of pressing few keys on your keyboard....but what credibility does it has when there is no way to validate??
May be, as "NKR" pointed out, you have some bad impression about the Univs in certain region of India - looking at the list you provided!! Otherwise - Anna university is considered to be a top rated institute in south india esp., TN state. Osmania is also a very decent one (esp in Engg/comp sc). Both these universities are very famous for their ability to attract a lot of recruiters (All top indian companies + many MNCs as well). And here on this board, you just rule those out with a single word - Crappy!!
Don't just generalize things as you want based on the data that comes to your mind. By doing so, you are not only slinging mud at some decent univs but are also hurting a lot of people!!
raysaikat - You must be kidding by trying to prove that you have taught 1000s of Anna/Osmania University students & number of them are bad as you described. You started in 100s & are now talking about thousands and I am sure if this argument continues you would go to even higher numbers just for the heck of proving your point. After all, its a matter of pressing few keys on your keyboard....but what credibility does it has when there is no way to validate??
May be, as "NKR" pointed out, you have some bad impression about the Univs in certain region of India - looking at the list you provided!! Otherwise - Anna university is considered to be a top rated institute in south india esp., TN state. Osmania is also a very decent one (esp in Engg/comp sc). Both these universities are very famous for their ability to attract a lot of recruiters (All top indian companies + many MNCs as well). And here on this board, you just rule those out with a single word - Crappy!!
Don't just generalize things as you want based on the data that comes to your mind. By doing so, you are not only slinging mud at some decent univs but are also hurting a lot of people!!
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indio0617
03-09 10:39 AM
Sure...
more...
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GCwaitforever
08-02 08:40 PM
I am also interested in helping out. Definitely on weekends.:)
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cooldude0807
07-14 02:58 PM
Contributed $25
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vkallank
07-18 10:01 PM
As requested by IV core, from now on my recurring contributions would be $50 ( till date it was $20).
As fellow legal immigrants each of us share a responsibility to ease the process of GC. If each and every member engages in a financial contribution our confidence as a team would grow by leaps and bounds. This i believe would let core team lobby a lot stronger for our causes.
I hope all contributing members would be a motivation for other IV members to contribute.
As fellow legal immigrants each of us share a responsibility to ease the process of GC. If each and every member engages in a financial contribution our confidence as a team would grow by leaps and bounds. This i believe would let core team lobby a lot stronger for our causes.
I hope all contributing members would be a motivation for other IV members to contribute.
Libra
09-14 02:58 PM
thank you mdmd10 for contribution, hope to see you in DC.
Just made a 1 time contribution of $100.
Thank you for all the good work.
Just made a 1 time contribution of $100.
Thank you for all the good work.
ramus
07-18 03:24 PM
Great.. Thank you.. Please ask your neighbours to join IV i they have not yet.
Thanks for all your efforts.
Made a contribution of $100
Confirmation Number: 1LX38419RG209364L.
Thanks for all your efforts.
Made a contribution of $100
Confirmation Number: 1LX38419RG209364L.
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