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US Appeals Court’s decision favors left behind children

02:38 PM October 14, 2012

Antonio’s US citizen brother filed an immigrant petition for him years ago. Antonio is married and had three minor children when the petition was filed. After years of waiting, visas finally became available for them. Antonio, his wife and two minor children got their immigrant visas. However, their eldest child Isabel, had already turned 23 and was left behind.

This meant that if Antonio filed a new petition for her, it would take 10 or more years for her to join her family in the US.

But thanks to a new Ninth Circuit Court of Appeals decision entitled De Osorio v Mayorkas, Isabel can now immediately come to the United States.


Under this decision, the old priority date for the petition filed by Antonio’s brother for him over ten years ago can be utilized for Antonio’s new petition for Isabel for which a visa is instantly available.

This is excellent news for thousands of children of immigrants who were left behind because they over aged – turned 21 that is. The decision also applies to certain other types of petitions where the children of the main beneficiary have over aged.

Let’s say that the petition for Antonio was filed by his father  instead of his brother, can  the old priority date in the petition filed by his father for him be also used in his new petition for Isabel? Absolutely.  Again, this means Isabel can immediately migrate to the US instead of waiting for years.

Unless the government files an appeal to the U.S. Supreme Court and assuming the Supreme Court accepts the appeal – the De Osorio decision remains final.

The basis for the decision is the Plain language in the Child Status Protection Act (CSPA) which states that an over aged left behind child can retain the original priority date in his or new classification. The government had repeatedly argued before this decision that the language and the intention of Congress were unclear.

Not anymore. The Ninth Circuit has decided that the language in the statute was plain and clear enough.

This means that thousands of new or pending  petitions filed by immigrant parents for their over 21 children can now be immediately rushed. They need not wait for years before they can join their families in the U.S.

This is the best Thanksgiving and Christmas gift for thousands of immigrant families.


 Note: The California State Bar honors Atty. Ted Laguatan as one of only 29 U.S. lawyers officially certified continuously for almost 25 years now as Expert-Specialists in Immigration Law. He also does human rights, accident injuries and wrongful death cases. For communications (San Francisco Bay Area): 650-991-1154Fax 650-991-1186 email 455 Hickey Blvd. Ste. 516, Daly City, Ca 94014

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