Last month a number of major tech companies joined forces to urge the Department of Homeland Security to address the growing number of children of employment-based visas facing deportation as they reach the age of twenty-one and no longer qualify as dependents. In a letter to DHS Secretary, Alejandro Mayorkas, Twitter, Google, Amazon, American Immigration Lawyers Association (“AILA”), the South Asian Bar Association, and many others cited need to further economic growth. The letter states in pertinent part:
H-1B visa holders and other foreign national workers on nonimmigrant visas are critical drivers of economic growth in the U.S. economy. These individuals help maintain our competitive edge on the world stage, but the U.S. immigration system fails to adequately provide for them and their families. [It estimates that] [m]ore than 200,000 children have grown up in America protected by their parents’ visa status.
Many children have already aged out. Some adult children are forced to deport themselves or others are able to temporarily extend their stays – unsure of what the future holds. Recent articles in the LA Times and New Yorker highlight the stories of a few of the now adult children of employment-based visas holders as they navigate the system and make challenging decisions.
The issues facing children aging out of their dependent status is wrapped up in much larger issues in our immigration system. In theory, children of some employment-based nonimmigrant visa holders have a pathway to permanent residency through their parent’s green card application. The reality is that backlogs can prolong the process for decades. There is no guarantee that those applications will be approved before they turn twenty-one. Beyond appeals to DHS to establish policies that aid dependents on the verge of aging out, the tech giants who joined in writing the letter, called on Congress to pass legislation that “provides a long-term resolution to this problem.” They are specifically referencing the America’s Children Act, which was introduced in both the House and the Senate last year. There are several other bills introduced in Congress over the past few years that seek to reform the system as a whole or specifically aid the children of employment-based visa holders. None have garnered enough support in Congress as of yet and it remains to be seen whether this session will change that.
The proposed America’s Children Act would do a few things if passed. First, it creates a path to permanent residency for “dependent child of a nonimmigrant admitted pursuant to an approved employer petition under section 214 or as a dependent child of a nonimmigrant with status under section 101(a)(15)(E), and was lawfully present in the United States pursuant to such status for an aggregate period of not less than 4 years” and who had been in the US for more than 10 years and graduated from college. This provision is clearly aimed at those dependents who came to the US at an early age and face self-deportation from the only home they have known. Second, it creates employment authorization. Third, for those who are waiting on pending green card and are in danger of aging out, the Act requires USCIS to use their age at the time of filing rather than their age on the final action date. This change from using the final action date under the Child Status Protection Act has long been advocated for by immigration lawyer Cyrus Mehta. This change has the potential to make a significant impact for those waiting on green cards. They would no longer be the mercy of backlogs and caps that keep applications tied up for years. As of right now it is unclear whether there are enough votes in the Senate to pass the legislation.
While the America’s Children Act addresses the specific needs of those at risk of aging out, there is other legislation before Congress that seeks to address the larger issues with the current system. The RELIEF Act attempts to address some of the issues with employment-based nonimmigrant visas. The bulk of the act focuses on addressing the backlog, which as discussed would have an impact on those in danger of aging out while they wait for their parent’s application to be approved. It also includes a provision that like the America’s Children Act, would freeze the age of a dependent and count it at the time of application rather than final decision. But unlike the American Children Act, it does not create a pathway to permanent residency for those who would otherwise not be eligible as a dependent. The RELIEF Act was previously introduced in the Senate in 2019 before being introduced and referred to the Senate Judiciary Committee this Spring. Some see the RELIEF Act as doomed and a watered-down version of the EAGLE Act, currently in front of the House. The EAGLE Act, which takes aim at the per country caps that have contributed to the massive waiting times and creates other mechanisms to reform the green card system. It does allow “[t]he child of a principal alien who files an application for adjustment of status under this subsection shall continue to qualify as a child for purposes of the application, regardless of the child’s age or whether the principal alien is deceased at the time an immigrant visa becomes available.” These are just some pieces of legislation in front of Congress this session. Those who support the American Children’s Act may see the protections for children of employment-based visa holders in some of the other legislation as not going far enough to ensure they are awarded permanent residency. Meaningful immigration reform should include those who face aging out while winding their way through the system.
While employment-based visa holders and their families await legislation and DHS action that removes barriers to permanent residency, there is some movement this fiscal year. While racing to ensure less green cards go to waste this year, USCIS has said they are taking measures to ensure an increase in the number of approvals. Whether or not they will be successful or it will make a meaningful impact on those who await approval remains to be seen. In anticipation of the USCIS September 30 deadline, this week a group waiting on green card approvals filed a class action suit against the agency in the United States District Court for the Western District of Washington.