[House Report 107-45]
[From the U.S. Government Publishing Office]
107th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 107-45
======================================================================
CHILD STATUS PROTECTION ACT OF 2001
_______
April 20, 2001.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 1209]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 1209) to amend the Immigration and Nationality Act
to determine whether an alien is a child, for purposes of
classification as an immediate relative, based on the age of
the alien on the date the classification petition with respect
to the alien is filed, and for other purposes, having
considered the same, report favorably thereon without amendment
and recommend that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 1
Background and Need for the Legislation.......................... 2
Hearings......................................................... 3
Committee Consideration.......................................... 3
Vote of the Committee............................................ 3
Committee Oversight Findings..................................... 3
Performance Goals and Objectives................................. 3
New Budget Authority and Tax Expenditures........................ 3
Congressional Budget Office Cost Estimate........................ 3
Constitutional Authority Statement............................... 5
Section-by-Section Analysis and Discussion....................... 5
Agency Views..................................................... 6
Changes in Existing Law Made by the Bill, as Reported............ 7
Markup Transcript................................................ 8
Purpose and Summary
H.R. 1209 modifies the provisions of the Immigration and
Nationality Act determining whether an alien is considered a
child and eligible for permanent residence status as an
immediate relative of a U.S. citizen, principally by providing
that the alien's status as a child is determined as of the date
on which the petition to classify the alien as an immediate
relative is filed.
Background and Need for the Legislation
The Immigration and Nationality Act provides two avenues
for family-based immigrants to acquire permanent resident
status. Immediate relatives (spouses, unmarried children under
21, and parents) of United States citizens may receive such
status without numerical limitation. Certain other relatives of
U.S. citizens (unmarried sons and daughters 21 or over, married
sons and daughters, and siblings) and of permanent resident
aliens (spouses, unmarried children under 21, unmarried sons
and daughters 21 or over) may receive such status as family-
based preference immigrants, which are subject to numerical
limitations each year.
Since there are no numerical limitations on the number of
immediate relatives who can receive permanent resident status,
their cases should be acted upon quickly. Subject to reasonable
time for processing and ensuring that the alien is qualified
for a visa under various provisions of the INA, the spouses,
minor children and parents of U.S. citizens should receive
their visas without delay. Unfortunately, an enormous backlog
of adjustment of status (to permanent residence) applications
has developed at the INS. The backlog of unprocessed
applications exceeded 986,000 as of this February. As of the
end of the second quarter of fiscal year 2000, the INS-wide
average processing time for adjustment of status applications
was 22 months (regional delays can be longer).
Under current law, the date at which the age of an alien is
measured for purposes of eligibility for an immigrant visa is
the date the adjustment of status application filed on his or
her behalf is processed by INS, not the date that the preceding
immigrant visa petition was filed on their behalf. Thus, with
the INS taking up to 3 years to process applications, aliens
who were under 21 when their petitions were filed may find
themselves over 21 by the time their applications are
processed. When a child of a U.S. citizen ``ages out'' by
turning 21, the child automatically shifts from the immediate
relative category to the family first preference category. This
puts him or her at the end of long waiting list for a visa.
How long? Generally, 23,400 family first preference visas
are available each year to the adult unmarried sons and
daughters of citizens. As of January 1997, 93,376 individuals
were on the waiting list. Currently, visas are available for
individuals from most countries who had petitions filed on
their behalf in March 1999. For nationals of Mexico, visas are
now available for petitions filed by April 1994. For nationals
of the Philippines, visas are now available for petitions filed
by May 1988. Thus, some sons and daughters of citizens will
have to stay on a waiting list for from two to 13 years--
entirely because the INS did not in a timely manner process the
applications for adjustment of status filed on their behalf.
H.R. 1209, the Child Status Protection Act of 2001,
addresses the predicament of these aliens, who through no fault
of their own, lose the opportunity to obtain an immediate
relative visa before they reach age 21. The bill provides that
the determination of whether the unmarried son or daughter of a
citizen is considered a child (under 21) is to be made using
the alien's age as of the time an immigrant visa petition is
filed on his or her behalf.
This rule will also apply 1) when permanent resident
parents petition for immigrant visas for their sons and
daughters and later naturalize (making the sons and daughters
potentially eligible for immediate relative visas) and 2) when
citizen parents petition for immigrant visas for their married
sons and daughters, and the sons and daughters later divorce
(making them potentially eligible for immediate relative
visas).
H.R. 1209 will also apply to those rare cases where a child
``ages out'' overseas during the usually more expeditious State
Department visa processing.
Hearings
No hearings were held on H.R. 1209.
Committee Consideration
On April 4, 2001, the Committee met in open session and
ordered favorably reported the bill H.R. 1209 without amendment
by voice vote, a quorum being present.
Vote of the Committee
The bill was ordered favorably reported by a voice vote.
Committee Oversight Findings
In compliance with clause 3(c)(1) of Rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of Rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Performance Goals and Objectives
The cause that necessitates H.R. 1209 is the unacceptably
long backlog of adjustment of status (to permanent residence)
cases before the INS. As INS speeds its adjudication process
and reduces this backlog, minor alien sons and daughters of
U.S. citizens will have to wait shorter periods to be able to
adjust their status, and fewer will have to rely on the
provisions of H.R. 1209. The Committee expects the INS to make
substantial and consistent progress in reducing the backlog.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House Rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of Rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 1209, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, April 16, 2001.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1209, the Child
Status Protection Act of 2001.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Mark
Grabowicz (for Federal costs), who can be reached at 226-2860,
and Erin Whitaker (for revenue impacts), who can be reached at
226-2680.
Sincerely,
Dan L. Crippen, Director.
Enclosure
cc:
Honorable John Conyers Jr.
Ranking Member
H.R. 1209--Child Status Protection Act of 2001.
CBO estimates that implementing H.R. 1209 would result in
no significant costs to the Federal Government. The bill would
affect direct spending and receipts, so pay-as-you-go
procedures would apply, but we estimate that any such effects
would be less than $500,000 annually. H.R. 1209 contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act and would impose no costs on
state, local, or tribal governments.
Under current law, unmarried children of United States
citizens can apply for permanent U.S. residence as ``immediate
relatives'' (a category with no limit on the number of entries)
only if they are under the age of 21. The Immigration and
Naturalization Service (INS) determines a child's age at the
time the agency reviews the application. Because of backlogs at
INS, about 1,000 of the applications reviewed each year are for
persons who have turned 21 since they filed their petitions.
This places them in the ``family-based preference'' category,
which is subject to annual limits, and in many cases delays
approval for years.
H.R. 1209 would direct the INS to use the child's age when
the petition was originally filed. The bill's provisions would
apply to petitions filed both before and after enactment. CBO
expects that this legislation would increase the number of
immigrant visas granted each year, because more applicants
would be eligible for visas as immediate relatives and fewer
would be shifted to the limited, family-based preference
category.
The INS collects administrative fees when applications are
filed, so H.R. 1209 would not affect the amount collected by
that agency. In addition, the Department of State collects fees
for issuing immigrant visas. These fees are deposited in the
Treasury and classified as governmental receipts (revenues).
Because H.R. 1209 would increase the number of immigrant visas
granted each year, revenues from this visa fee would increase.
However, we expect that the additional revenues would total
less than $500,000 in any year.
Finally, enacting the bill could increase direct spending
for certain Federal benefit programs, but any increase in
spending for those programs would likely be less than $500,000
annually because of the small number of persons affected.
The CBO staff contacts are Mark Grabowicz (for Federal
costs), who can be reached at 226-2860, and Erin Whitaker (for
revenue impacts), who can be reached at 226-2680. This estimate
was approved by Robert A. Sunshine, Assistant Director for
Budget Analysis.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of Rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in Article I, section 8, clause 4 of the
Constitution.
Section-by-Section Analysis and Discussion
Section 1. Short title
This act may be cited as the ``Child Status Protection Act
of 2001''.
Section 2. Use of age on petition filing date, parent's
naturalization date, or marriage termination date, in
determining status as a child of a citizen
Section 2(a) of the bill amends section 201(b)(2)(A) of the
Immigration and Nationality Act (INA) by creating a new clause
(iiii). Subclause (iiii)(I) provides that for purposes of
clause (b)(2)(A)(i) (setting forth which aliens are considered
to be immediate relatives of U.S. citizens and consequently
eligible for the acquisition of permanent resident status as
immediate relatives), a determination of whether an unmarried
alien is a child (as defined in section 101(b)(1) of the INA)
of a U.S. citizen shall be made using the age of the alien on
the date on which the petition is filed with the Attorney
General under section 204 of the INA to classify the alien as
an immediate relative.
Subclause (iii)(II) of section 201(b)(2)(A) of the INA
provides that in the case of a petition under section 204 of
the INA initially filed for an alien child's classification as
a family-sponsored immigrant under section 203(a)(2)(A) of the
INA, based on the child's parent being lawfully admitted for
permanent residence, if the petition is later converted, due to
the naturalization of the parent, to a petition to classify the
alien as an immediate relative, the determination described in
subclause (iii)(I) shall be made using the age of the alien on
the date of the parent's naturalization.
Subclause (iii)(III) of section 201(b)(2)(A) of the INA
provides that in the case of a petition under section 204 of
the INA initially filed for an alien's classification as a
family-sponsored immigrant under section 203(a)(3) of the INA,
based on the alien's being a married son or daughter of a
citizen, if the petition is later converted, due to the legal
termination of the alien's marriage, to a petition to classify
the alien as an immediate relative, the determination described
in subclause (iii)(I) shall be made using the age of the alien
on the date of the termination of the marriage.
Section 2(b) of the bill provides that the provisions of
section 2(a) of the bill shall apply to determinations made
under section 201(b)(2)(A)(i) of the INA, and classification
petitions filed under section 204 of the INA, before, on, or
after the date of the enactment of the bill.
Agency Views
Department of Justice,
Washington, DC, April 19, 2001.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: This letter presents the views of the
Department of Justice on H.R. 1209, the ``Child Status
Protection Act of 2001.'' We share the goal of H.R. 1209:
addressing the problem of children who ``age out'' for
immigration purposes under the Immigration and Nationality Act
(the INA) through appropriate statutory change. We have
concerns, however, about the bill's retroactivity provision and
would welcome the opportunity to work with you on this
provision.
H.R. 1209 provides that an alien shall be defined as a
child of a United States citizen for purposes of immediate
relative petitions based on the date of filing the petition,
rather than on the date the petition is adjudicated. This
change will address situations in which the beneficiary ``ages
out'' of immediate relative status by reaching his or her 21st
birthday before the petition can be adjudicated. We strongly
support this change in the law.
Section 2(b) of H.R. 1209 provides that the amendments made
by the bill would extend to determinations made under section
201(b)(2)(A)(i) of the INA, and classification petitions filed
under section 204 of the INA, ``before, on, or after the date
of enactment of this Act.'' Extending the new definition of
``child'' to all past determinations is problematic. First, the
Immigration and Naturalization Service (INS) does not track the
cases of aliens who have ``aged out'' in the past. Second, we
are concerned that the productivity implications of reopening
an undetermined number of past, completed adjudications could
be substantial, given the unlimited scope of the retroactivity.
This is particularly true given that the further back in the
past the INS is forced to go, the more difficult it is to
reopen and correctly adjudicate a case.
H.R. 1209's retroactivity could affect determinations made
as long ago as 1952. INS resources that would have to be
diverted to readjudicating immediate relative petitions from
the past could not be used for the INS's current efforts to
reduce processing times for its current caseload of immigrant
petitions and other benefit applications.
The general practice with respect to changes in the law is
that the amendments apply to future petitions and those pending
on the date of enactment, but not to determinations made before
the date of enactment. We understand, however, that Congress
may seek to address cases of children who have aged out in the
past. Therefore, if Congress considers it necessary to address
past cases, we would prefer a reasonable limit to
retroactivity, such as making the changes retroactively
applicable only to petitions denied as a result of the
beneficiary aging out within a specified period of time. A more
limited retroactivity would provide relief in recent age-out
cases under current or recent immigration law, while avoiding
the harmful effects and legal complications of potentially
reopening cases decided decades ago. Again, we would request
the opportunity to work with you on this provision before the
House of Representatives further considers the bill.
Thank you for the opportunity to present our views. Please
do not hesitate to call upon us if we may be of further
assistance. The Office of Management and Budget has advised
that, from the standpoint of the Administration's program,
there is no objection to the submission of this report.
Sincerely,
Sheryl L. Walter, Acting Assistant Attorney General.
cc:
John Conyers, Jr.
Ranking Member
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
SECTION 201 OF THE IMMIGRATION AND NATIONALITY ACT
Sec. 201. (a) * * *
* * * * * * *
(b) Aliens Not Subject to Direct Numerical Limitations.--
Aliens described in this subsection, who are not subject to the
worldwide levels or numerical limitations of subsection (a),
are as follows:
(1) * * *
* * * * * * *
(2)(A)(i) * * *
* * * * * * *
(iii)(I) For purposes of clause (i), a
determination of whether an unmarried alien is a child
(as defined in section 101(b)(1) in the matter
preceding subparagraph (A) of such section) of a
citizen of the United States shall be made using the
age of the alien on the date on which the petition is
filed with the Attorney General under section 204 to
classify the alien as an immediate relative under
clause (i).
(II) In the case of a petition under section 204
initially filed for an alien child's classification as
a family-sponsored immigrant under section
203(a)(2)(A), based on the child's parent being
lawfully admitted for permanent residence, if the
petition is later converted, due to the naturalization
of the parent, to a petition to classify the alien as
an immediate relative under clause (i), the
determination described in subclause (I) shall be made
using the age of the alien on the date of the parent's
naturalization.
(III) In the case of a petition under section 204
initially filed for an alien's classification as a
family-sponsored immigrant under section 203(a)(3),
based on the alien's being a married son or daughter of
a citizen, if the petition is later converted, due to
the legal termination of the alien's marriage, to a
petition to classify the alien as an immediate relative
under clause (i), the determination described in
subclause (I) shall be made using the age of the alien
on the date of the termination of the marriage.
* * * * * * *
Markup Transcript
BUSINESS MEETING
WEDNESDAY, APRIL 4, 2001
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 10:00 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner [chairman of the committee] presiding.
Chairman Sensenbrenner. The committee will be in order; the
Chair notes the presence of a working quorum. Pursuant to
notice, I now call up the bill H.R. 1209, the Child Status
Protection Act of 2001.
[H.R. 1209 follows:]
Chairman Sensenbrenner. I now recognize the gentleman from
Pennsylvania, Mr. Gekas, for purpose of making a motion.
Okay. I'll make the motion. I move its favorable
recommendation to the House. Without objection, the bill will
be considered as read and open for amendment at any point, and
the Chair now recognizes the Chairman of the Subcommittee on
Immigration and Claims, the gentleman from Pennsylvania, Mr.
Gekas--to strike the last word.
Mr. Gekas. Thank you.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Gekas. I thank the Chair.
This bill is a replication of legislation that was
considered by this committee last term and which was then
authored by the former chairman, our colleague from Texas,
Lamar Smith.
At that time, we found it to be an acceptable solution to a
long-festering problem and we now repeat the message that it's
time to adjust the status of the youngsters who are affected by
it.
Here's what the situation is. When aliens are permitted to
apply for permanent residency and citizenship in the United
States, automatically their children under 21 years of age are
granted similar permanent status. However, because of the INS's
longstanding problems with the process of monitoring these
applications, these children, sometimes 12, 13, 14 and 16,
become over 21, and when they reach that age, they're
automatically put into a preference status, not the immediate
relative status that's granted to minor children.
This bill seeks to correct that to say that if, indeed, the
application was filed, the process began while the child was a
minor, that even if that child turns 21, that they--it would
not be shifted, that child would not be shifted into the
preference more-strict category that is part of the INS
structure, but rather be considered at the time of the
application as a minor, thereby receiving permanent status. So
that's a simple act of justice to which the lady from Texas,
Ms. Jackson Lee, subscribed last time and whose amendment at
that time is part of the main bill which we now present here
today.
I yield back the balance of my time.
Chairman Sensenbrenner. The gentleman's time is expired.
For what purpose does the gentlewoman from Texas seek
recognition?
Ms. Jackson Lee. Mr. Chairman, to strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Jackson Lee. I thank the Chairman very much.
To my colleagues, the Child Status Protection Act of 2001
is cosponsored by myself and the Chairman, and it is a
culmination of a bipartisan agreement that addresses the status
of unmarried children of U.S. citizens who turn 21 while in the
process of having an immigrant visa petition adjudicated. I
think it supports the underlying premise of the immigration
policy in this country, which is a reunification of families.
The age and marital status of the offspring of U.S.
citizens determine whether they're eligible for immigrant
status as immediate relatives or under the family first
preference category.
Briefly, H.R. 1209 would protect the status of children of
United States citizens who in essence age out, get over the age
while waiting for unfortunately the delayed processing in the
INS.
The child of a U.S. citizen is eligible for admission as an
immediate relative. Immediate relatives of U.S. citizens are
not subject to any numerical restrictions; that is, visas are
immediately available to them under the statute, subject only
to the processing time required to adjudicate the immediate
relative visa. Thus, the only wait that such child--children
are required to endure is the time it takes to process their
paperwork.
This bill corrects the problem of aging out. Under current
law, however, once children reach 21 years of age, they are no
longer considered immediate relatives under the INS, which
requires them to get back in line and behind a whole list and
throng of individuals, which causes them, one, to not be united
with their family in citizenship, but two, to wait a very,
very, very, very long time. Thus, instead of being entitled to
admission without numerical limitation, the U.S. citizen sons
or daughters are placed, as I said, in the back of the line for
one of the INS backlog family preference categories of
immigrants.
This bill with the new added compromise language that I
proposed last year will solve the age-out problem without
displacing others who have been waiting patiently in other visa
categories, which was one of the issues that disturbed us. So
in essence, they may be behind a line technically, but they
would now avoid that conflict and that discrimination, if you
will, of those who have been waiting by being in a separate
category.
I would like to thank our subcommittee chairman, and I look
forward to the consideration of this legislation and ask my
colleagues for their support.
With that, Mr. Chairman, I yield back the balance of my
time.
Chairman Sensenbrenner. For what purpose does the gentleman
from Texas, Mr. Smith, seek recognition?
Mr. Smith. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Smith. Mr. Chairman, first I want to thank and
compliment the Chairman of the Immigration Subcommittee, Mr.
Gekas, and the Ranking Member, Ms. Jackson Lee, for introducing
this legislation.
Children of citizens are being penalized because it is now
taking the INS an unacceptable length of time--often years--to
process adjustment of status applications. In some cases, the
wait is so long that minor children are becoming adults while
waiting for the INS to act. When they become adults, they lose
the privilege status of immediate relatives of citizens. They
are placed at the end of the first preference waiting list and
have to endure an additional wait of 2 to sometimes 13 years
for their green cards.
H.R. 1209 does the right thing and provides that an
immigrant child of a U.S. citizen shall remain eligible for
immediate relative status as long as an immigrant visa petition
was filed before the child turned 21.
I hope that after Congress restructures the INS and the
Federal Government provides immigrant benefits in a more
professional and expeditious manner, we won't need to pass any
more bills such as H.R. 1209.
Thank you, Mr. Chairman. I urge my colleagues to support
it.
Chairman Sensenbrenner. The gentleman's time has expired.
Are there amendments?
There do not appear to be any amendments.
A reporting quorum is not present. Without objection, the
previous question is ordered and further proceedings on the
bill will be postponed.
[Staff Note: Intervening Business.]
Chairman Sensenbrenner. Okay. We do have a vote on the
floor. The Chair is under the impression that we have a
reporting quorum in the vicinity and I would like to take care
of H.R. 1209.
So the question occurs on the motion to report the bill
H.R.--never mind. That was taken care of before the gentleman
from New York appeared. I think you're for this one.
The question occurs on the motion to report the bill H.R.
1209 favorably.
All in favor will say aye.
Opposed, no.
The ayes have it and the motion to report favorable is
adopted.
Without objection, the Chair is authorized to move to go to
conference pursuant to House rules. Without objection, the
staff is directed to make any technical and conforming changes.
All members will be given 2 days as provided by House rules
in which to submit additional dissenting supplemental or
minority views. Let me say that that statement was made
pursuant to the rules; however, yesterday the House did grant
us the authority to file a committee report no later than April
20th, so dissenting minority and supplemental views are due by
then.
The Chair will declare a recess for us to go and vote.
Please come back promptly, because after the rule on the estate
tax repeal is voted on, we're supposed to have three or four
votes in a row on motions held over from yesterday and it would
be nice if we didn't have to come back after lunch.
The committee is in recess.