Once children turn 21, they can no longer continue with their existing H-4 visa which is meant only for dependants. This is referred to as ‘ageing-out’. At this juncture, majority of the children are still studying. This leaves them with no option, but to obtain a restrictive F-1 visa meant for international students or self-deport to India – a country many have little or no connect with. Further, there is no guarantee that the student will get an F-1 visa, which adds to their anguish. Subsequently, post studies, the aged-out child must find an employer willing to sponsor an H-1B work visa, which has its own challenges.
Even if at a later stage, the parent obtains a green card for himself or herself and other dependants (spouse and younger children), the immigration sponsorship process has to begin anew for the aged-out child.
TOI had highlighted these issues in its edition of October 1, 2019.
Annually the US sets aside only 1.40 lakh green cards for employment-based applicants and there is a 7% per country cap. Given the heavy influx of Indians in the US – majority of them holding an H-1B visa, this restrictive policy results in a waiting time running into decades. A fall-out is that children of Indian families do not get the same protection when they age-out, as compared to children of several other nationalities.
Five Indian families have filed a lawsuit, on behalf of themselves and all persons similarly placed. The petition seeks to ensure that the provisions of the Child Status Protection Act (CSPA) are applied equally to all children regardless of the national origin of their parents.
CSPA was introduced in 2002, to prevent minor children from ‘ageing-out’ when they reach 21 years of age and losing eligibility to obtain a lawful permanent resident together with their parents. In simple terms, CSPA permits some individuals to remain classified as ‘children’ beyond their twenty-first birthday. It is based on a computation formula.
The submission filed with the court points out that presently children whose parents are born in India, are not protected from ageing out, owing to the decades long queue for a green card and the fact that age computations for CSPA are based on national origin-based India visa bulletin. On the other hand, children from several other nationalities remain protected.
Portland based, Brent Renison, partner at the law firm of Parrilli Renison, who is the lead attorney in this lawsuit, told TOI “The per-country limits have begun to tear families apart, including those who have come to the US decades earlier, with children growing up almost their entire lives in the US. The petition seeks to gain fairness for the H-4 kids who are being threatened with self-deportation after spending a lifetime here.”
He adds, “Specifically, we are asking the court to recognize that the H-4 children of long term H-1B immigrants have a special place in the law, because they’re able to exceed the six-year limitation on H-1B work visas indefinitely while they stand in the long queue for a green card caused by per country limits. At the same time other immigrants from other nations who might not have even set foot upon US soil before can apply when the children are of advanced age, nearly adults, and still immigrate. This is fundamentally unfair.”
We are asking the court to permit H-4 children to remain in H-4 status and obtain work permits even after their biological age has exceeded age 21. We’re asking to have their age “frozen” under the Child Status Protection Act (CSPA) just as other children have their age frozen – based on the worldwide country chart, not the national origin-based India visa bulletin, explained Renison.
To illustrate, one of the plaintiff submits that his daughter was only four years old when he moved to US under an H-1B visa but suffers the consequences of ageing-out. On the job front, four good companies rescinded their offers on learning she would need to be sponsored for a work visa. She fears separation from her family.
As of April 2018, there were 6.32 lakh Indians (including spouse and children below 21 years) waiting for their green card in the employment-based immigration category. Of this figure, nearly 57% constituted dependant spouses and children below 21. Indians comprised of 76% of the total employment based green card backlog.
Cato, a US based think-tank states: “Indian employees of US businesses (falling in the EB2 and EB3 visa groups), who entered the waiting line in 2018, have an impossible half a century long wait.” EB2 green card covers those having advanced degrees, whereas the EB3 is for those having a bachelors’ degree or other works having the requisite experience.
“If we prevail, H-4 children will be able to remain with their families and wait together for an immigrant visa number to become available, instead of living almost their entire lives here only to be told to leave,” sums up Rension.