Twenty-one years ago, William was petitioned by his US citizen brother. This petition was filed when William’s child, Charlotte, was still a minor. Now Charlotte is 28 years old and while still single, she is still under the physical care and custody of her father. Charlotte had an accident a few years back and had been disabled since.
The National Visa Center of the US Department of State (DOS) sent William a letter informing him that the visa petition was filed in 1989 is now ready to be processed. He was asked to sign a Choice of Agent form to begin the process. William noticed that in the letter, only his wife Cecilia and him were listed as applicants for the visa. Charlotte was no longer included in the petition.
Prior to responding to the letter, William consulted with his brother’s counsel and he was told that Charlotte was no longer included in the petition because she aged out or turned twenty-one while the petition was pending. If William decides to obtain his immigrant visa and becomes a green card holder, he may then petition his only daughter Charlotte. Unlike other immigrant visa applicants, Charlotte may not be considered as a “derivative” beneficiary child because she is now an adult.
William believes that this is totally unfair for her child to be left behind. Charlotte was only seven years old when the petition was filed in 1989 and that it was the lengthy waiting period that caused her daughter to aged out. He heard that if he petitions Charlotte as an adult child, this petition will fall under a second family based category and it will take at least ten years before his child will be processed for the visa.
In his desire to finally migrate to the US where his siblings and parents live, William searched for solutions to his predicament. He still wants Charlotte to travel with him when he goes to the US. He heard about “recapturing” priority dates so that the adult child’s own petition may have the priority date of his parent’s original petition, which in this case is 1989.
Numerical Limitations
There are only certain numbers of immigrant visas available in a given year. The US Department of State (DOS) allocates only 226,000 visas, worldwide, every year under the family based preference category. Since there are more visa petitions than the number of visas allocated, severe backlog in processing of petitions are created. The countries with the most visa applications backlogs are Mexico, China, Dominican Republic, India and the Philippines. As a system for processing the visas, the “priority dates” became reference point to determine which petition will be processed for a visa.
Priority date is the date the US citizen or green card holder files the petition with the US Citizenship and Immigration Service. When a petition is approved, the priority date is also indicated in the approval notice as the date of filing of the petition and not the date of approval. This rule applies to family petitions.
The priority dates for processing of visas are being monitored by the DOS, the agency that comes up with a monthly “visa bulletin.” This bulletin may be accessed from the DOS website at www.travel.state.gov. For the month of July 2010, and referring to the visa bulletin, the petitions filed in April 1989 by US citizens on behalf of their brothers or sisters are being processed. This means that the waiting time is more or less twenty years for this type of petition.
Priority Dates of Filipinos
A closer look at the visa bulletin will reveal that Philippines and Mexico are the countries with the most backlogs in visa petitions. Philippines fourth preference, which is the sibling petition, is the worse considering that the petitioned brother/sister will have to wait for two decades before a visa actually processed.
Interestingly, only for Filipino nationals, the petitions by green card holders for “adult unmarried” children under the second preference-b have advanced priority dates than petitions by US citizens also for their “adult unmarried” children under the first preference petition. More Filipino immigrants applying for citizenship and filing petitions as US citizens caused this mind-boggling situation to happen. In an attempt to correct the apparent favorable treatment to green card holder petitioners over US citizen petitioners, legislation in 2002 called the Child Status Protection Act was passed allowing an option to stay in the second preference even if one becomes a US citizen. This is called the “opt out” provision where a letter is sent to the US embassy indicating the desire to keep the petition under the second preference for a faster processing time.
Challenging the Priority Date Rule
When it takes several years for visas of adult children to be processed, the very core policy behind immigration, which is family unity, is subdued. This current state of chronic backlogs in family petitions is definitely distressing to many who want to join their families in the US. In one Board of Immigration Appeals case, Matter of Garcia,(BIA June 16, 2006) the government agreed that the priority date of the principal applicant in the fourth preference petition shall be recaptured by the petitioned child who aged out. This is not a precedent decision and is not followed as a general rule by the DOS. However, there is also the case of Matter of Wang (25 I&N Dec 28, BIA 2009) which is currently pending before the Court of Appeals, 9th Circuit, where petitioners are seeking court interpretation of the Child Status Protection Act that will actually recapture priority dates of the principal applicants like in the case of William.
The Matter of Wang case is still pending and we are all waiting for a favorable interpretation by the Court of Appeals. If the petitioners prevail in this case, then, more priority dates will be recaptured resulting in faster adjudication of children who aged out while their petition is pending. This remains to be seen.
(Tancinco may be reached at law@tancinco.com or at 02 887 7177)
