Las Vegas Sun

January 17, 2018

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Some immigrants trapped in ‘age-out’ loophole

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Steve Marcus

Chris Montalvo, 27, sits in his parents’ home Sunday, Nov. 2, 2014. Montalvo’s parents became citizens after he turned 18, but citizenship is transferred only to children younger than 18.

With midterm elections over, immigration reform advocates once again are on the watch for any movement from the White House or the new Congress.

The reform debate historically has focused on people in the country illegally, but in June, a Supreme Court decision about visa applicants highlighted the need for a comprehensive look at the entire immigration system. The 5-4 ruling threatens to add years, and possibly decades, to the naturalization process for some children of immigrants who are legally pursuing citizenship.

One of the main groups affected is children included on petitions for permanent residency of adult immigrants. Before the ruling, those children generally received their visas at the same time the adults received their green cards, regardless of the children’s age — even if they had grown to adulthood during the process.

But in the decision, justices drew a harder line, saying the vast majority of children must be younger than 21 to receive visas at the same time green cards are given to their parents.

If they are older than 21 when the visa arrives, they must start over in a different visa category, losing their place in line and becoming subject to much longer waits.

The wait for visas for certain countries, such as Mexico, Philippines and China, often is more than a decade because of high numbers of applicants for a controlled number of visas. A child included on a visa application at age 9 or 10 could “age out” — in other words, turn 21 — before the adult relative receives a visa.

“The Supreme Court took a very conservative, narrow analysis of the law, and it’s sad,” said Las Vegas immigration attorney Kathia Pereira. “I’ve heard stories of children aging out of their visa status too many times. It’s really time to work on a comprehensive immigration system, not for the benefit of immigrants but for U.S. citizens who want to reunite with family.”

Chris Montalvo, a 27-year-old resident of the southwest valley, understands the struggle.

When he was 8, Montalvo’s parents, who had temporary visas, moved to Long Beach, Calif., from Guadalajara, Mexico. His 26-year-old sister had married a U.S. citizen and become a citizen herself. She petitioned for their parents, making Montalvo eligible for a green card on his parents’ petition.

When he was 17, Montalvo’s parents received their green cards. Montalvo didn’t. He said his family got bad advice from a lawyer, and his application was not done properly. He still hadn’t received a green card when he turned 21, so around his birthday he moved into a different category where immigrants from Mexico like him can wait 20 years.

Montalvo grew up in the United States and went to American schools. His father became a citizen the year Montalvo turned 21, but citizenship is transferred only to children younger than 18. As an adult, fewer options were available to Montalvo, and neither he nor his parents had the money to continue paying lawyers and application fees. Montalvo, with citizen parents and siblings, had no legal residency.

“It’s frustrating,” he said. “Deep inside, I do feel American, but I’m so limited in what I can do. For a while, I blamed my parents for messing things up, but as I got older, I realized how hard it is to navigate. I don’t want a handout. I just want to be part of the country I’ve spent 20 years in.”

He since has received a work permit under deferred action for childhood arrivals, a temporary program that could end at any moment.

According to government estimates, several thousand immigrant children age out of the system each year. In 2002, Congress passed the Child Status Protection Act, which allows children to keep their place in line even if they age out of a category. The Supreme Court decision took a narrow view of the law, however, limiting the act to certain types of applicants.

“The law is so complicated, and there are so many rules and exceptions to the rules, it’s just unworkable,” said Las Vegas immigration attorney Peter Ashman. “It was designed decades ago and never really updated in a comprehensive fashion. It needs to be revamped top to bottom because it doesn’t serve the purpose that it’s supposed to serve. It’s not fair for someone to wait and wait and expect benefit and at the end they’re told, ‘Sorry, you aged out.’ ”

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