July 15, 2002

State Department Issues Revised Interpretation of USA Patriot Act’s Aging-Out Provisions

The State Department recently sent out a memorandum to all diplomatic and consular posts regarding a revised interpretation of the aging-out provisions from the Patriot Act. Originally the State Department, as well as the INS, had interpreted the provision as meaning that applicants could only take advantage of the provision in the event that they were the beneficiary of a petition or application filed on or before September 11, 2001 and their 21st birthday occurred after September 2001. In such cases, these individuals would continue to qualify as a child for 45 days after the applicant’s twenty first birthday for the purpose of adjudicating that petition or application. However, the State Department has now liberalized their interpretation of the provision. According to the recent memorandum, age-out protection is available to any individual who is the beneficiary of a petition filed on or before September 11, 2001, regardless if that petition or application was adjudicated by September 11, 2001, and whose 21st birthday occurs after September 30, 2001, for the purpose of visa issuance based upon such petition or application. Those individuals will be considered a “child” for an additional 45 days after their 21st birthday regardless of when that 21st birthday occurs. At this time, it is unknown if the INS will adopt a similar interpretation.