For thousands of unlucky young people every year, turning 21 is not a cause for celebration but a reason to cry.  It is called “aging out,” a cruel rite of passage that unfairly punishes children for growing up while waiting patiently for an ever growing immigration backlog.  Lauren Gray, a law abiding resident of Trenton, Missouri, since she was 4 years old, is aging out next month even though her immigration paperwork was filed when she was 12.  For her, that means being forced out of the country.

With caps on the numbers of legal immigrants set by Congress back in 1990 before Lauren was even born, waiting times for permanent resident status have stretched longer each year.  The numbers haven’t kept up with the times, nor with the demand.  According to the 2011 National Foundation for American Policy report, “Waiting and More Waiting: America’s Family and Employment-Based Immigration System,” waiting times for Lauren’s category, Family Third Preference, is about 10 years and growing.  For those Third Preference cases from Mexico and the Philippines, the wait is 19 years due to further per-country limits.

The Family Third category, in which Lauren is a derivative of the petition filed for her mother, accounts for only 2 percent of U.S. legal immigration annually, and 0.008 percent of the U.S. population annually according to the report.  She becomes ineligible for her family’s E-2 visa when she turns 21, and soon after she will lose her place in their Third Preference petition, too.

Employment-based wait times are in some cases much better, and in others much worse.  If you are a multi-national manager or executive, there is no waiting at all.  If you are an Indian professional with a bachelor’s degree, the wait has been over a decade for those who started the process 9 or 10 years ago, but getting in line now in the Employment-based Third Preference will take 70 years – yes, I said 70 years.  However, there is one important thing that Employment-based immigrants have that Family-based do not.  It is the ability to carry your place in line, or your priority date, from one petition to another.

Under federal regulations, 8 CFR 204.5(e), an Employment-based immigrant can retain the priority date from the earliest filed petition.  This is not always so in the Family-based context.  There are some Family-based petitions that convert automatically in an age out situation and retain the date, but Employment-based applicants have an edge in this respect because it is across the board.  Since there is no law passed by Congress directing exactly how the priority date retention rules should work, the Administration could allow all categories, both Family and Employment, to retain the person’s earliest place in line.  That would be fair, and would make sense, and would not require Congress to act.

It would also help Lauren Gray.  Her Family Third Preference priority date is September 2003, and right now the immigration agency is processing priority dates from May 2002 for those born in the UK like Lauren.  If her mother gets her permanent resident status sometime next year when the priority date comes current, she could file for Lauren as the over 21 daughter of a permanent resident, the Family Second “B” category, or 2B for short.

Under current rules, Lauren will have to start her wait over again, and the 2B numbers are back in June 2004.  It could easily take another decade or longer to get to her application.  If the rule were changed, however, Lauren could use the September 2003 priority date from her first petition for her mother’s 2B petition, and could immigrate without getting booted to the back of the line.  Changing the rule would let people keep their place in line.  But it wouldn’t avoid the situation of Lauren having to leave for a number of years.  That is because her E-2 visa is up when she is 21, and there is no temporary visa for people who are waiting in line.

A second solution, one which would keep Lauren together with her family and community, is for Congress to revert to a previous immigration law which allowed people like Lauren to file for adjustment of status while they are waiting for their date to come up.  In 1976, Congress amended the Immigration and Nationality Act, Section 245(a), by substituting the word “filed” for the word “approved.”  That small change effectively required immigrants to wait until their priority date has been reached before even filing their green card application, whereas before immigrants could file and wait for approval when the date was reached.  Reverting to the old rule would keep families together, and could help avoid the aging out situation encountered by Lauren.  She could file her adjustment of status application now, and wait until her priority date was reached before receiving approval for her permanent resident status.

Congress should change the wording back, allowing an application where “an immigrant visa is immediately available to [her] at the time [her] application is approved.”  While some other minor tweaks  to the Child Status Protection Act, INA Sec. 203(h)(1)(B), would be needed to ensure Lauren stayed eligible, a rule which gives families some predictability and fairness is long overdue.

Parents should not have to worry if their children will be kicked out of the country after decades-long waits, the end of which are not foreseeable and keep getting longer each year.  The aspirations of their children should not be shattered by aging out, after a patient and law abiding wait for the American dream.  The law should celebrate, not punish, those who achieve and grow up.

Written by: Brent Renison, AILA Media-Advocacy Committee