Dear Atty. Lou,
A pleasant day to you. I am a permanent resident and I live with my husband and our 2 teenage daughters here in the United States for almost 1 year now. My eldest son who was born Oct 8, 1988 and he is presently living alone in the Philippines because he was already 21 years old when our priority date became current.
My husband was petitioned by his father under F3 category, our priority date was Sept 4,1992 & it became current last July 2010. I have heard about the Court Ruling on aged out children of US immigrants. Tuloy na po ba ito Atty? . I hope you’ll have time to answer my email so we may have an idea as to what to do next. Thanks and God Bless.
Imelda
Dear Imelda,
Your aged out son represents thousands of children who aged out waiting for the priority dates of their parents to become current. The law enacted in 2002, the Child Status Protection Act covers aged out children and allows them to obtain their visas despite the fact they aged out or turned 21 years old. The specific provision of law which is now incorporated in Section 203(h)(3) of the Immigration and Nationality Act has never been implemented by the U.S. Citizenship and Immigration Services in aged out cases. This provision is called the “automatic conversion” and “retention” where the parent’s original priority date obtained when the latter was petitioned is retained by the aged out child after the petition is automatically converted to the appropriate category.
As a result of the non-application of the automatic conversion provision, several cases were filed against the U.S.C.I.S. and the more favorable decision was the case that was filed with the Ninth Circuit Court of Appeals, De Osorio v. Mayorkas. The court in this case ruled that U.S.C.I.S. should allow aged out children to retain the priority date of their parent’s original petition. The decision was rendered on September 26, 2012. After the ruling was published, thousands of aged out children became excited about the implementation by the U.S.C.I.S. of the ruling.
There were, then, speculations on whether the government would file a petition for review of the De Osorio case with the Supreme Court. If the matter is not elevated to the Supreme Court, the ruling in De Osorio case would become final and that U.S.C.I.S. has to follow the mandate to implement the “automatic conversion.” Aged out children were hopeful and so were their families that the government would not file a review of the case with the Supreme Court.
On January 25, 2013, the U.S.C.I.S. filed a Petition for a Writ of Certiorari with the U.S. Supreme Court questioning the ruling of the Ninth Circuit Court of Appeals in the De Osorio v. Mayorkas case. This was an unexpected move from the government side considering that recent immigration policies are being released to promote “family unity”. In fact, on March 4, 2013, U.S.C.I.S. will start implementing provisional waivers rules to avoid separation of families. Since the matter is now with the Supreme Court, there is no final mandate that may be implemented to favor the aged out children.
Regarding your case Imelda, your son could have been covered by the “automatic conversion” provision of the law and the decision of the Ninth Circuit Court of Appeals in the De Osorio case. Unfortunately, with this recent development by the U.S.C.I.S. there will be more delays in the implementation of this provision. Hopefully, the De Osorio plaintiffs will prevail.
Atty. Lou
(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 1 888 930 0808; email at law@tancinco.com or check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to law@tancinco.com)
