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Children of immigrants in green card backlogs face uncertain futures in the U.S.

“Aging out” of immigration status can threaten some children with the risk of deportation or family separation. Congress should act to keep families together by reforming per-country caps and providing these children a clear path to permanent residency and citizenship.

"If children of immigrants turn 21 before receiving a green card, they are no longer considered “children” for immigration purposes."
8 USC 1101(a)(B)(1)

The U.S. immigration system prioritizes family unity, but the lengthy green card process poses challenges

Keeping families together has long been a foundational principle in America’s immigration system. Many employment-based temporary visa programs, such as the H-1B highly-skilled temporary worker visa and the E-2 investor visa, allow immigrants to bring dependent children and spouses with them.

Allowing visa holders to bring dependents with them invites families to build a life in America and to put down roots together. Their children often grow up in the United States, going to school, playing sports, worshipping, and participating alongside U.S.-citizen kids in communities across the country. Many rightly see America as their home, and are ready to build their futures here.

Unfortunately, many of these young people are seeing their futures thrown into disarray before they can begin. That’s because their status as dependents also have limitations, particularly if families decide that they want to make their move to America permanent by applying for permanent residence (a “green card”).

If children of immigrants turn 21 before receiving a green card, they are no longer considered “children” for immigration purposes, and they must secure a different immigration status to remain in the United States lawfully. If they cannot do so, they have to depart the country or risk becoming undocumented, exposing them to deportation and jeopardizing their future immigration options—and upending the lives they have built here.

"More than 100,000 children in the employment-based green card backlogs are at risk of aging out of their immigration status in the next two decades."
David Bier, "100,000 Children in the Employment‐​Based Green Card Backlog at Risk of Family Separation" Cato Institute, November 20, 2020

Hundreds of thousands of children are at risk of aging out and losing their immigration status

There are more than 200,000 children in the employment-based green card backlog, and more than 100,000 children are at risk of aging out of their status over the next two decades if current slow rates of green card issuance continue. Other advocates estimate that including the number of children whose parents are here on renewable nonimmigrant visas like the E-2 raises the total to more than 200,000 kids at risk of aging out and being subject to separation from their families.

For many individuals living in the U.S. on employment-based visas, adjusting to permanent status from a temporary work visa and securing a green card can take decades because of extensive green card backlogs—even if they meet all the criteria to receive one. These backlogs are caused by low annual limits on how many green cards can be issued and per-country caps that further restrict green card issuance by country of origin.

More than 960,000 immigrants and family members are stuck in the employment-based green card backlogs, waiting many years for their turn to apply. If dependent children are stuck too long in the backlogs, or are otherwise unable to secure their own permanent immigration status, they risk aging out and losing their legal status1.

The threat of children aging out forces difficult challenges and impossible choices on immigrant families. If children stay without legal status, they risk deportation and permanently losing their ability to live permanently in the U.S. in the future. If they leave the U.S., their families will either be separated or forced to uproot, upending their lives, abandoning the years they’ve invested to try to live here, and taking their skills and talents with them elsewhere. This is yet another obstacle in a failed system that is incentivizing highly-skilled workers and U.S. businesses beginning to look to other countries for a better option.

"Congress should pass the bipartisan EAGLE Act to eliminate country-specific numerical limits on green cards."
H.R. 3468 FWD.us statement on the introduction of the EAGLE Act

Congress must act to protect children from aging out of status

Congress should pass the bipartisan Equal Access to Green cards for Legal Employment (EAGLE) Act (H.R. 3648) to reform the per-country caps and begin reducing backlogs that force families to wait many years for green cards.

This alone will not be enough to eliminate backlogs—Congress should also recapture previously unused green cards and increase the number of green cards issued annually—but passing the EAGLE Act is a necessary first step.

Congress can also act to protect families at risk today. The bipartisan American Dream and Promise Act (H.R. 6), passed by the House earlier this year, includes a pathway to permanent status and citizenship for certain dependent children.

Additionally, Representatives Deborah Ross (D-NC) and Mariannette Miller-Meeks (R-IA) have introduced the bipartisan America’s CHILDREN Act (H.R. 4331), a bill that would provide a pathway to permanent residency and citizenship for children of immigrants on employment-based visas who have lived in the U.S. for at least ten years, and have graduated from an institution of higher education. The bill would also ensure children retain their status as “children” throughout the immigration process.

Until Congress acts to eliminate the country caps and clear the backlogs, allowing families to secure work authorization, be protected from deportation, and be able to secure their status would be hugely helpful. The Biden Administration should take any steps available to ensure that families are able to stay together and build their futures in the U.S. while waiting for the immigration process to complete.

Get in touch with us:

Andrew Moriarty

Deputy Director of Federal Policy

Notes

  1. The Child Status Protection Act (CSPA) was passed in 2002 to address age-out problems; the law aims to preserve dependent children’s status as children for the purposes of immigration, even if they “age out” of the classification in the time it takes to process their applications. Unfortunately, CSPA offers no help for individuals on visas with no pathway to permanent status, like E-2 dependent children. Neither does CSPA help H-4 dependent children whose parents are waiting in backlogs, because they are not allowed to formally begin the process that would “lock” their age in place until a green card is available for them.
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