[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.

                                  
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