With Lack Of Action, Congress Fails Immigrant Children

Many Americans are unaware that a person can enter the United States legally, live here their whole life and still be forced to leave America. To understand the problem facing many young people who came to this country with their parents but “age out” of the U.S. immigration system, I interviewed Dip Patel, founder of Improve The Dream.

Stuart Anderson: Can you describe the problem Improve The Dream hopes to fix?

Dip Patel: Most Americans assume that if somebody has been lawfully residing in America for long enough, they can eventually apply for citizenship. It’s far from true. Our current immigration laws allow children to be legally brought, raised and educated in America—only to be forced out once they turn 21. These individuals have not traditionally been considered Dreamers or received protection under DACA (Deferred Action for Childhood Arrivals) because they had and maintained legal status. We’ve come to be known as “Documented Dreamers” to indicate that it is possible for immigrant children to grow up without a clear pathway to citizenship, even while having a documented status.

Improve The Dream is a youth-led, grassroots organization that hopes to correct gaps in our immigration laws that allow “aging out” of the system. We want to ensure that children who were brought to the United States legally and are raised and educated here can stay and contribute to their fullest potential.

Anderson: What are the main causes of this problem?

Patel: There are two main reasons. The first is the decades-long green card backlogs that affect many visa holders, mainly from India. Because current law sets percentage quotas on the number of green cards issued to individuals born in each country in a given year, Indians on work visas are waiting in seemingly endless employment-based immigrant backlogs. The crisis has reached a point where people brought with parents to the U.S. as infants are still in the backlog 21 years later. Once the child turns 21, the child is no longer a minor, and the legal status/protection they had under their parents’ visa expires, kicking them out of the green card line and possibly the country.

The other way people end up in this predicament is if their family arrived on a visa that allows for long-term residence but has no clear path to apply for green cards. Some small business owners on E-2 visas can be here for decades with no path. Just like the people who age out in the green card backlog, the children of E-2 visa holders cannot rely on their family’s legal status once they turn 21. One group ages out because the green card lines are too long, while the other group ages out because there wasn’t a line in the first place.

Anderson: It has been reported an estimated 200,000 people fall into this category. Can you give some examples of people facing harm if the law doesn’t change?

Patel: Athulya Rajakumar, a 23-year-old, recent graduate of the University of Texas at Austin, originally from India, came to the United States when she was four years old as a dependent on her mother's visa. Athulya grew up in Seattle, Washington, and now resides in Dallas, Texas. She has completed her education from first grade to her bachelor’s degree in the United States. Two years ago, when she turned 21, she aged out of her mother’s green card application. In 8 months, she faces family separation and leaving the only country she’s known after spending nearly 20 years here with a documented status. (Two months ago, she testified on behalf of Improve The Dream before a Senate Judiciary subcommittee hearing. See Athulya’s testimony here.)

Mily Herrera, 17, and Diego Herrera, 20, were brought to the United States from Mexico by their parents over a decade ago to give them a better future and escape the violence and corruption in Mexico. Their parents moved here lawfully on E-2 visas, which allowed them to start a small business in Houston, Texas. When they turn 21 or after completing their education, they may be forced to leave the only country they’ve known.

Pareen Mhatre was only four months old when her parents came to America from India. Her parents attended the University of Iowa, where they’re now full-time employees. Even though Pareen has spent all but four months of her life in the United States while maintaining a lawful status, she faces being forced to leave after completing her biomedical engineering degree from the University of Iowa. Last year, Pareen Mhatre testified before the House Judiciary Subcommittee on Immigration and Citizenship.

Hilary Yoon came with her family from South Korea when she was just 10 months old. Her family started a cafe in Portland and has been a big part of their community for over a decade. A few years ago, Hilary’s older brother and sister were forced to self deport after completing college. Now at age 17, she hopes to go into the medical field but fears a similar fate as her siblings. (See video here.)

Anderson: What measures in Congress could fix the problem?

Patel: After a years-long effort, our vision to end aging out was introduced by Congresswoman Deborah Ross (D-NC) and Mariannette Miller-Meeks (R-IA) in the House and Senators Alex Padilla (D-CA) and Rand Paul (R-KY) in the Senate. The bill has broad bipartisan support but has not yet been voted on in Congress.

The America’s Children Act would create a process for individuals to apply for a green card if they were brought to the United States as the children of visa holders, maintained legal status for 10 years and graduated from college. It would also establish age-out protections that lock in a child’s age on the date they file for a green card petition—rather than the date the green card becomes available, which could be decades after the original application. The bill would make other reforms, such as providing work authorization for the children (once they reach age 16) of long-term visa holders whose green card applications are pending.

Other measures that would eliminate the per-country limit or recapture green cards would help some families receive green cards more quickly, which could prevent members of those families from aging out.

Anderson: Are there potential administrative measures that would be at least a temporary help to individuals who might age out of their immigration status?

Patel: While administrative policy changes may not result in permanent changes, some actions, ranging from policy manual changes to new regulations, may help reduce unnecessary aging out.

In the past, administrative reforms have ignored and excluded this population. For example, in 2012, the DACA program was announced, which allowed certain children brought to the country at a young age protection from deportation and work authorization. In theory, many individuals facing aging out should have qualified. However, despite meeting the primary qualifications, we were made ineligible because the DACA application required applicants to be undocumented.

Last November, we worked with Rep. Deborah Ross and Senator Alex Padilla, who led a bicameral DACA comment letter to the administration to ask for Documented Dreamers who had legal status to receive protection via DACA. Last summer, Rep. Deborah Ross and Rep. Ami Bera (D-CA) led a letter to the administration asking for additional policy changes that could help some individuals.

Administrative changes that could help include:

- USCIS can use “dates for filing” instead of “final action date” when determining green card eligibility for children.

- Allow aged-out children to retain their original priority date. Children who are derivative beneficiaries of family and employment-based petitions are losing their priority date and being required to get back in line because USCIS has adopted a narrow interpretation of the 2002 Child Status Protection Act (CSPA) that allows for “retention of priority date” by interpreting it to only allow for the retention if a subsequent petition is filed by the original petitioner.

In 2014, the Supreme Court ruled that this narrow interpretation is not required and the agency has discretion to adopt the broader interpretation due to the statute’s ambiguity (U.S. Supreme Court in Scialabba v. Cuellar de Osorio). This can be changed by the Attorney General referring Matter of Wang and redeciding it with a broader interpretation as described by the Supreme Court in its decision. A new decision that permits children to retain their employment-based preference priority date would help many families stay together.

- USCIS can add another category to compelling circumstances that defines “aging out” as a compelling circumstance for children of visa holders raised in the United States. We hope this definition for compelling circumstances can be as broad as possible to protect all children from aging out, including those whose parents did not have a pending green card application.

Anderson: Do the young people affected by the “aging out” problem want the chance to become Americans?

Patel: The young people in our organization consider themselves Americans and want the opportunity to become permanent residents and then apply to become naturalized citizens.

Young people who face aging out want to stay and contribute to our country, which we consider our home. While we have faced numerous obstacles, we also recognize the tremendous opportunities the United States has provided us.

If Congress and the president do not solve the aging out problem, top talent from around the world will overlook the opportunities that America promises, knowing full well it may be a poor choice for those with families. As an increasing number of people leave America for countries with less burdensome immigration policies, some cite their children aging out as their main reason. Last year, for example, the only critical care physician in Mason City, Iowa, returned to India because of his daughter’s uncertain future in America.

If these policies are not changed, America is not only failing us, but it is failing itself by depriving it of the contributions of children it helped raise and educate. America has invested in our talents and success, and the country should reap the benefits.