On September 26, 2012, a federal appeals court rendered a decision en banc in favor of the appellants against the United States Citizenship and Immigration Service (USCIS). In the consolidated case of De Osorio v. Mayorkas, the court ruled in essence that aging-out children (those turning 21 years old), should have the opportunity to immigrate with their parents.
Aging Out Children
To be eligible to join the parents in immigrating in the United States, the children must at least be less than 21 years old when the visa is available to be issued. The visas are made available by the U.S. Department of State based on priority dates or dates when their U.S. citizen or green card holder petitioners filed the petitions. This policy makes a backlog a logical consequence if we consider the numerical limitations in these circumstances, given that typically, there are more petitions than available visas. For intending Filipino immigrants, the backlog is not just extensive; the wait could be quite outrageous. Visas may take more than 20 years for petitions filed by U.S. citizen siblings; they may take anywhere from 15 to 20 years, for petitions for adult children filed by US citizens, depending on whether or not the adult children are married. Since the wait time for visas to become available is ridiculously long, children will naturally grow older and if they are 21 or older by the time the visas are available, they are no longer eligible to immigrate with their parents. Since the children are ones who lose out in the process of waiting for the visas to become available, family separation becomes inevitable.
To prevent this from happening, legislation was enacted called the Child Status Protection Act (CSPA) that allowed a child to immigrate despite reaching the age of 21. This law was created in 2002 and up to the present time, the USCIS has been constantly sued for its erroneous interpretation of the provisions of CSPA.
The USCIS limits applicability of CSPA to specific cases and excludes aged out children in categories where it actually should be applied. In a very recent case, the Ninth Circuit Court of Appeals handed a decision stating in essence that aged out children in the third and fourth preference categories may also immigrate with their parents through priority retention and automatic conversion.
In light of this recent court ruling, the USCIS is mandated to apply the CSPA to aged out children of the third and fourth preference category.
The De Orosco Decision
Elizabeth has a visa petition filed on her behalf by her U.S citizen father on January 29, 1991. At the time the petition was filed, Elizabeth’s children were below 21 years of age. When her priority date became current on December 15, 2005, Elizabeth’s children turned 21 years old. After receiving her green card, Elizabeth filed petitions for her now adult children under the second preference. The waiting time under the second preference category for adult children is 9 to 10 years. Elizabeth wants to have her original priority date of 1991 retained in her children’s petition. According to her, the CSPA protects aging out children and that in 1991, when the petition by her father was filed, her children were all below 20 years old. The USCIS denied her request for priority retention. She filed a lawsuit with the U.S. District Court which also affirmed the USCIS decision. An appeal was filed thereafter with the Ninth Circuit Court of Appeals and initially Elizabeth lost her case. A request for hearing en banc was made and finally, in a vote of 6-5, majority of the justices ruled in her favor.
The court interpreted CSPA in favor of significant number of aging out children who are similarly situated. It explained in its decision after hearing arguments from the plaintiffs and the government that the aged out child may retain the priority date of the petitioned parent and that there will be automatic conversion to the second preference category.
Following prior regulations on priority retention, a new petition is filed for the adult child by the parent and a request for the priority date retention will be made. Once the priority date retention is granted, a visa will be immediately available to the aged out child. These steps will actually avoid the strenuous process of having to file a new petition and waiting in line again for a new priority date to become current.
Limited Applicability
The USCIS has the prerogative to appeal to the Supreme Court if it decides to do so. In the meantime, what can the aged-out children do? The decision was rendered only within the jurisdiction of the ninth district and those petitioners who are residing in this district may file their new second preference petition and ask that the old priority date in the original petition be assigned to these petitions. It will be difficult to predict what USCIS is going to do with these requests considering the limits of the ninth circuit’s jurisdiction. These matters may be taken individually or on a case-by-case basis in the absence of uniform guidance from USCIS. Hopefully, the court’s interpretation of the CSPA will be adopted by the USCIS across the board and that a policy memorandum or regulation be established to settle this decade-long controversy relating to aged out children.
(Tancinco may be reached at law@tancinco.com or at 887 7177or 721 1963 or visit her website at tancinco.weareph.com/old)
