Thousands of aged-out children will no longer have to wait at the back of the line for a green card. That is, if the government relents and concedes that it had been wrongly and unfairly interpreting the law for a long time.
In a recent ruling that will have far-reaching consequences, the Ninth Circuit Court of Appeals held that derivative beneficiaries of all types of family petitions could retain the priority date of the original petition filed on behalf of their parents.
This is the latest in a legal saga that revolves around a key provision of the Child Status Protection Act.
The CSPA calculates a child’s age using a formula which takes into account the government’s delays in processing a visa petition. If even after the age-reducing computation, a child’s age is still 21 or over, Section 1153(h)(3) still preserves the aged-out child’s chances for a green card by allowing the petition to be automatically converted to the appropriate category. It also allows the child to retain the original priority date.
This way, aged-out children get credit for the years or even decades that they and their parents waited to reach the front of the line for an immigrant visa.
But the USCIS has interpreted this provision narrowly and said that automatic conversion and priority date retention did not apply to derivative beneficiaries of F3 (married sons and daughters of U.S. citizens) and F4 (brothers and sisters of U.S. citizens) petitions.
The plaintiffs in the case De Osorio v. Mayorkas were derivative beneficiaries of F3 and F4 visa petitions. One of the plaintiffs, Cuellar de Osorio, was the primary beneficiary of an F3 petition filed by her U.S. citizen mother with a priority date of May 1998. Her son at the time was 13 years old. When a visa became available in November 2005, her son had aged out and became ineligible for an immigrant visa. After she immigrated to the U.S., she filed an F2B (unmarried son or daughter of permanent resident) petition for her son in August 2006 and requested that he retain the 1998 priority date. The USCIS denied her request.
Plaintiff Costelo was also the beneficiary of an F3 petition filed by her U.S. citizen mother in 1990. Her daughters had aged out when the priority date became current in 2004. She filed F2B petitions for her daughters and requested retention of the 1990 priority date.
Plaintiff Ong was the beneficiary of an F4 petition by his U.S. citizen sister in 1981. His daughters, who were 2 and 4 years old at the time of the petition, had aged out when a visa became available in 2002. In 2005, Ong filed F2B petitions for them and requested retention of the 1981 priority date. The USCIS did not respond to Ong’s and Costelo’s requests.
While this case was pending with a district court in California several years ago, the Board of Immigration Appeals issued a restrictive interpretation of Section 1153(h). It said that only subsequent visa petitions that do not require a new petitioner may convert automatically to a new category and retain the original petition’s priority date. This meant that automatic conversion and priority date retention were available only to derivatives of F2A (spouse and children of permanent resident) petitions.
The district court thus ruled against the aged-out children, prompting them to file an appeal with the Ninth Circuit Court of Appeals. A three-judge panel of the appeals court deferred to the strict interpretation of the BIA.
But on rehearing, the Ninth Circuit en banc handed victory to the aged-out children. It found that based on the plain language of the law, automatic conversion and priority date retention applied to all family-sponsored derivative beneficiaries. It therefore rejected the unfair reading given by the government.
The story, however, may still be far from over as the government can file an appeal with the U.S. Supreme Court. If the government persists despite this most recent refutation of its interpretation, thousands of families will continue to be separated for many years during the wait for an immigrant visa.