Favorable appeals court decision to benefit aged-out children

On September 26, a federal appeals court decided in favor of appellants against the United States Citizenship and Immigration Service (USCIS). In the consolidated case of De Osorio v Mayorkas, the court ruled that “aging-out” children (those turning 21 years old), should have the opportunity to immigrate with their parents.

To be eligible to join parents in immigrating to the United States, children must be less than 21 years old when the visa is issued.  The visas are made available by the US Department of State based on priority dates. This policy results in a backlog, considering the big number of applications. Typically, there are more petitions than available visas. For aspiring Filipino immigrants, the wait could be quite outrageous—more than 20 years for petitions filed by US citizen siblings; from 15 to 20 years, for petitions for adult children, depending on whether or not they 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, 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 interpretation of the provisions of CSPA.

In its recent decision, the Ninth Circuit Court of Appeals stated 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.

The De Orosco Decision

Elizabeth’s US citizen father filed a visa petition on her behalf 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 had turned 21 years old. After receiving her green card, Elizabeth filed petitions for her now adult children. The  waiting time under the second preference category for adult children is nine  to 10 years.

The USCIS denied her request for priority retention. A US District Court affirmed the USCIS decision. An appeal was filed with the Ninth Circuit Court of Appeals and initially Elizabeth lost her case. A request for hearing en banc was made and finally, voting 6-5, the court ruled in her favor.

The court said the aged-out child may retain the priority date of the petitioned parent and that there should be automatic conversion to the second preference category.

Following prior regulations, a new petition should be filed for the adult child and a request for the priority date retention made. Once this 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. In the meantime, what can the aged-out children do? The decision was rendered only within the jurisdiction of the Ninth district. It will be difficult to predict what USCIS is going to do with requests from other districts. 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 a policy memorandum will settle this decades-long controversy relating to aged-out children.

(Tancinco may be reached at [email protected] or at 887-7177 or 721 1963 or visit her website at www.tancinco.com)