For almost two years, families separated from their adult children were given hope of reunification. A Court of Appeals decision in the Osorio v. Mayorkas case, ruled that aged-out children (those who turned 21years old while their parents’ petitions were pending) may automatically be converted and be immediately granted visas.
On June 9, 2014, the U.S. Supreme Court in the case of Scialabba v. Cuellar de Osorio reversed the decision and ruled that the aged-out children should fall into the queue and may not avail of the benefits of automatic conversion and priority date retention. This came as a shock to many Filipino children hoping to be reunited sooner with their families in the United States. What is this new Supreme Court decision and how devastating is its impact on families?
Joseph is the eldest of four siblings. His father, Tony was petitioned under the third preference category, a petition by U.S. citizens on behalf of adult children. The petitioner is Gregoria on behalf of Tony. Joseph was the derivative child and was only 8 years old when the petition was filed.
It took twenty years before Tony’s petition became current. By the time the visa was available, Joseph was already 28 years old. His siblings who were not born at the time the petition was filed were all below the age of 21 years old.
Tony’s wife passed away in the process. Joseph is very close to his siblings, having helped his single parent father with his younger siblings’ upbringing. So when the visa became available, Tony and his four children below 21 years were able to immigrate to the United States. Only Joseph was left behind because he was no longer a minor at the time the visas became available. Joseph’s separation from his family was very painful for him. He fell into a depression and became very ill. Upon Tony’s arrival in the United States as a green card holder, he immediately filed a petition for Joseph as the adult child of a lawful permanent resident. Under this category, Joseph has to wait for more than 10 years. But Tony heard about the Child Status Protection Act and the benefits provided for aged-out children. Information reached him that with the Osorio Case ruling in the Ninth Circuit Court of Appeals, Tony’s petition from his mother Gregoria may be automatically converted to that of Joseph’s petition and that the priority date may be retained. While waiting for the USCIS guideline to implement the ruling in the Osorio case, the USCIS instead filed an appeal to the U.S. Supreme Court. To Tony’s disappointment, the Supreme Court ruling declined to apply “automatic conversion” and mandated that aged-out children must have their own petition and fall to the back of the visa line. This means 10 more years of waiting for Joseph.
The case of Joseph is similar to the case that was elevated to the U.S. Supreme Court relating to a Filipino national by the name of Norma Uy. The latter is seeking application of the age-out protections of the CSPA for her daughter Ruth who was a derivative beneficiary of the petition filed by Norma’s brother on her behalf. It took more than two decades for Norma’s priority date to become current at which time Ruth was already 23 years.
First Come First Served
The method for petitioning families in the United States is based on the numerical system. It is a “first come first served basis” of issuing visas in the order of priority dates, i.e. dates when their U.S. citizen or green card petitioners filed petitions for them. This policy makes backlogs inevitable if we consider the numerical limitations typical under these circumstances where there are more petitions than available visas.
For intending Filipino immigrants, the backlog is not just extensive, it is unconscionable. Visa wait periods 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 filed by US citizens for their adult children depending on whether or not the adult children are married. Since the wait time for visas to become available is ridiculously long, nature will take its course. Petitioners may die in the process and when they do, their petitions die with them, save only in very exceptional circumstances where humanitarian revalidation is applicable. Children will naturally grow older and if they are past 21 by the time the visas are available, they are no longer eligible to migrate with their parents. Family separation becomes an all too common reality when children age out.
Child Status Protection Act (CSPA)
To prevent family separation, the ages of the children who fall in line with their parents are provided an opportunity to use the age of the child at the time of the initial filing of the petition. This rule applies to minor children of U.S. citizens. But this rule is not extended to the derivative children of the principal applicant. Petitions by U.S. citizens for their siblings; and, for their adult married children takes 2 decades before the visas become available. Naturally, derivative minor children waiting with their parents grow older and eventually reach majority age. Unlike marriage, which is a change in circumstance due to choice, growing old is function of nature. This fact simply was lost when the U.S. Supreme Court arrived at its decision that CSPA may not apply to these derivative beneficiary children. Unfortunately, these children would have to wait in line all over again. Justice Kagan reasoned that the aged-out child “should not receive credit for his parent’s wait when he has become old enough to live independently.”
The Supreme Court ruling is a huge setback for immigrant families who have been waiting to be reunited with their aged-out children left behind in the Philippines. But since the final arbiter has spoken, the only chance for a family reunification and change in policy is through congressional enactment. In the meantime, children like Joseph simply have to be in line for just that many more years before they can be reunited with the family they love.
(Atty. Lourdes Tancinco may be reached at law@tancinco.com or at 02 721 1963 or visit her website at tancinco.weareph.com/old)
