The U.S. Supreme Court heard oral arguments in the case of Mayorkas v. De Osorio last December 10. The Court’s decision is expected by June 2014 and will have far-reaching implications to derivative beneficiaries of family-based preference petitions.
Under immigration law, parents who are the principal beneficiaries of a family based preference petition can include their unmarried children under 21 as derivative beneficiaries. Family based preference petitions fall under four categories, namely, F1 (unmarried sons and daughters of U.S. citizens), F2A (spouses and minor children of lawful permanent residents (LPRs), F2B (unmarried sons and daughters of LPRs), F3 (married sons and daughters of U.S. citizens) and F4 (brothers and sisters of U.S. citizens).
There is a waiting period for a visa to become available because of the problem on visa backlog. The waiting period differs depending on the category and the country of chargeability; it can be decades for some countries such as Mexico and the Philippines. For example, the F4 category for the Philippines has a current priority date of July 1, 1990. Once a visa becomes available, the child who turns 21 years old “age-out” and can no longer join the parents as derivative beneficiaries. The Child Status Protection Act (CSPA) was enacted in 2002 to address this problem.
Under the CSPA, when a visa number becomes available, the amount of time the petition was pending before the USCIS is deducted from the child’s actual age. If the adjusted age of the child is under 21, the child may join the parents as derivative beneficiary. If not, the petition shall “automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”
This way the aged-out children won’t have to go to the back of the line for a new family-based preference category. They will be credited for the lengthy period they already waited with their parents.
The case of Mayorkas v. De Osorio involves Cuellar de Osorio who was the primary beneficiary of an F3 petition of her U.S. citizen mother. Her son was thirteen years old when the petition was filed in May 1998. When a visa became available in November 2005, her son aged out and became ineligible for an immigrant visa. She filed for an F2B petition for her son in 2006 and requested that her son’s 1998 priority be retained. The USCIS denied her request.
She appealed to the Ninth District Court which decided the case in her favor. The court ruled that the CSPA provides for the automatic conversion of the petition and priority date retention of all derivative beneficiaries of family based preference petitions. The Government appealed the decision to the U.S. Supreme Court.
The Government contends that the language of the CSPA law is ambiguous and the decision of the Board of Immigration Appeals (BIA) in Matter of Wang 2009 should be given deference by the court. In that case, the BIA ruled that the automatic conversion of the petition to F2B and the retention of the priority date only applies to F2A petitions.
A bipartisan coalition of current and former U.S. Senators filed a legal brief with the Supreme Court last November 4 and explained that the language of the CSPA is clear; it benefits all derivative beneficiaries of family based preference petitions. It further stated that “Only through the broad coverage of all derivative beneficiaries could the CSPA effectively protect family unity and award credit for the years that families had waited.” It went on to conclude that “Congress has enacted a law that is clear on its face; the agency must act to faithfully carry it out.”
Once the Supreme Court resolves this case, it will finally put an end to the long-standing legal saga involving the CSPA provision allowing age-out children to retain their original priority dates.