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email USA PATRIOT Act Series No. 3 - Help for Ageouts
P 211822Z NOV 01
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS PRIORITY
SPECIAL EMBASSY PROGRAM
AMEMBASSY JAKARTA
AMEMBASSY NASSAU
AMEMBASSY BELGRADE
POUCH SURABAYA
POUCH PESHAWAR
POUCH DUSHANBE
POUCH LAHORE
POUCH NDJAMENA
UNCLAS STATE 201468
E.O. 12958: N/A
TAGS: CVIS
SUBJECT: USA PATRIOT Act Series No. 3 - Help for Ageouts
REF: STATE 190946
1. Summary: Section 424 of the USA Patriot Act restores immigration benefits to certain applicants who aged out during September 2001 or will sometime thereafter. This section, in part, extends the time an aged-out visa applicant is considered to remain a child for purposes of overseas consular visa processing, as long as the visa application was filed on or before September 11, 2001.
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Section 424 of the Patriot Act
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2. An applicant whose twenty-first birthday occurs in September 2001 who is the beneficiary of a petition or application filed on or before September 11, 2001, will be considered to be a child for 90 days after the applicants twenty-first birthday for the purpose of adjudicating that repeat that petition or application. This provision effectively sunsets at midnight on December 29, 2001.
3. Similarly, an applicant whose twenty-first birthday occurs after September 2001 and who is the beneficiary of a petition or application filed on or before September 11, 2001, will continue to qualify as a child for 45 days after the applicants twenty first birthday for the purpose of adjudicating that repeat that petition or application. There is no sunset date in the Act for this provision, however as the class of applicants who might benefit from this provision of Section 424 is expected to be very limited, the provision will sunset when these few applicants have been processed.
4. While the language in the Act seemingly includes both NIV and IV cases, its application to NIV applicants who had filed visa applications on or before September 11 that were not completed prior to their having aged-out is somewhat problematic. For example, an H4 derivative of an H1B would have some extra time during which he/she might be considered a "child" for visa purposes, but he/she would eventually age-out 90 or 45 days after the twenty-first birthday and lose legal status in the U.S. unless he/she obtains a change of status from BCIS to another NIV category. Nevertheless, if the applicant fits into the 424 category, the law requires that the visa be issued. Posts should tell applicants issued NIVs under Section 424 that while the visa can be issued, their legal status in the United States will expire when the visa expires and they will begin to accrue unlawful presence in the United States.
5. The provisions of Section 424 do apply to the V and K NIVs as long as the visa application was filed on or before September 11, 2001, with the same caveat as noted in paragraph 4.
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How is filing a visa application defined?
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6. The definition in 22 CFR 40.1, (l) will apply. For NIVs, filing an application is defined as the submitting for formal adjudication by a consular officer of a completed Form OF-156, with any required supporting documents and the requisite processing fee or evidence of the prior payment of the processing fee when such documents are received and accepted for adjudication by the consular officer. For IVs, filing an application is personally appearing before a consular officer and verifying by oath or affirmation the statements contained on the Form OF-230 and in all supporting documents, having previously submitted all forms and documents required in advance of the appearance and paid the visa application processing fee. Thus, standing alone, return of packet three or receipt of packet four are insufficient for this purpose.
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Who will benefit from these provisions?
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7. Both provisions for virtual 90- or 45-day visa validity extensions are expected to cover only a small number of cases. For visa processing, these provisions cover only those cases that were filed on or before September 11 and in which the applicant subsequently aged out. Although it is likely that most such cases will arise due to delays caused by the events of September 11, section 424 does not require that to be the case.
8. For example, if an applicant was scheduled for and appeared for an interview, on or before September 11, 2001, was refused under Section 221(g) for lack of certain documents, and then aged out before the consular section was able to complete processing, that applicant is eligible to benefit under the Patriot Act provisions which allow the applicant to remain a child past the twenty-first birthday for the purpose of processing that visa application. If disruptions in the pouch system delayed delivery of supplies of OF-155As to post and thus prevented timely issuance before the age-out of a case that was filed on or before September 11, 2001, such applicants may benefit from these provisions.
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No fix for the IV system will be made to issue these few IVs
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9. Currently, the IV system locks cases for children who become 21 years old and reverts age-out cases to an adult son or daughter category on an applicants twenty-first birthday. As few cases will likely qualify for this extension, no change to IV is deemed necessary. Posts will therefore manually issue by typewriter any case that might qualify under these narrow guidelines, as the system will not adjust to allow consular processing for these cases.
10. There is no similar problem with the NIV system, and an additional 90 or 45 days may be added to the NIV validity for H4s or other NIV derivatives whose applications were filed on or before September 11, 2001. In all cases the validity of the visa may not extend beyond the applicable 90 or 45 day period after the applicants birthday. In petition-based cases, the Patriot Act extensions do not counter the limitations of the petition validity or the reciprocity schedule. If an applicant would normally only be able to obtain a limited validity NIV because the petition for the principal applicant is soon to expire, the Patriot Act does not permit visa validity beyond petition validity, regardless of these 90- or 45-day extensions of validity. Add the annotation below in paragraph 13 to an NIV issued under Section 424.
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How to manually issue an IV
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11. Use NIV to do the requisite CLASS namecheck. Print out the namecheck results. Retain one copy of the namecheck at post and insert a second copy into the IV packet normally produced for IV applicants; the adjudicating consular officer should initial both copies of the namecheck results.
12. Type all the information normally required on a blank OF-155F form.
13. Add the notation: PL 107-56, USA Patriot Act, Sec 424 to IVs and NIVs issued under Section 424. Use the space on the OF-155A directly under Immigrant Visa and Alien Registration at the top center of the form.
14. Because these visas are to be issued manually by typewriter, BCIS inspectors at POEs will not be able to locate the applicant in IV DataShare in IBIS. To avoid problems for these applicants at POEs, posts will include a memorandum as follows and place the memo on top of the manually issued IV foil:
(begin text of memo)
To: BCIS Inspector, POE
From: US Embassy/Consulate (Name)
Date:
Subject: USA Patriot Act Section 424, Age-outs
This visa was issued manually due to the constraints of the USA Patriot Act, Section 424, and information will not appear in IV DataShare. If you have any questions, please contact the originating U.S. Embassy or Consulate or the BCIS Forensic Document Lab.
(end text of memo to BCIS).
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Should the annotation in paragraph 11 above also be used for NIVs issued under Section 424?
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15. Yes. Posts should enter the same annotation on any NIV issued to an age-out under these provisions, however no memorandum to the POE is required.
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Must post report IVs manually issued under Section 424 to the Department?
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16. Yes. For IVs manually issued under Section 424, post should send an e-mail to the CA Support Desk and ask that a ticket be opened to make a change in posts data base. Provide name and DOB of applicant, visa class, case number, A-number (IV foil number), date of issuance, date of expiration, foreign state chargeability, and USERID of authorizing/adjudicating officer.
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What about petitions approved by BCIS for those who have already aged out?
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17. BCIS has not yet determined how the Patriot Act provisions will be implemented concerning petition approvals. CA/VO will continue to work with BCIS on this matter and provide information to posts on handling approved petitions for those who have already aged out as soon as this information is available.
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Does Section 424 of the Patriot Act apply to DV cases?
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18. No, Section 424 does not benefit DV age-outs, because there is no authority to issue DV-2001 visas in FY 2002. However other provisions of the Patriot Act apply to DV cases. They will be the subject of an additional cable. There is relief for a very limited group of DV age-outs under those provisions, specifically for those who are derivatives of a PA who died in the terrorist attacks of September 11, 2001.
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Conclusion
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19. These provisions in the Patriot Act likely signal that Congress did not wish to allow the terrorist attacks of September 11 unfairly to cut off immigration benefits for those unable to complete processing before aging-out. As long as a visa application was filed on or before September 11, 2001, an age-out may benefit from these provisions, with the exception of DV derivatives.
20. For further information on the legalities of the Patriot Act, posts may contact CA/VO/L/R. For questions on processing, contact CA/VO/F/P.
POWELL
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