US Supreme Court decision dashes hopes of immigrant families

Following a United States Court of Appeals decision some two years ago, parents entertained hopes of being reunited with their adult children quickly.

In the Osorio v Mayorkas case, the court ruled that aged-out children  (those who turned 21 years old while their parents’ petitions were pending) would have priority in the issuance of visas.

But on June 9, the US Supreme Court, in the case of Scialabba v Cuellar de Osorio, reversed the decision and withdrew the priority given to aged-out children.

It said aged-out children must be petitioned on their own and move to the back of the visa line.

How devastating is this decision on families?

Joseph is the eldest of four children. He  is very close to his younger siblings, having helped his widowed father Tony care for them.
Tony was petitioned under the third preference category, a petition by US citizens on behalf of adult children.
Joseph was only 8 when his grandmother filed the petition on his father’s behalf. By the time Tony’s visa was available, Joseph was already 28 years old. His siblings, who were not yet born when the petition was filed, are all under 21.

Tony and the younger children were able to immigrate to the US. Joseph was left behind being no longer a minor.

As soon as Tony arrived in the US, he immediately petitioned for Joseph as the adult child of a green card holder. Tony heard about the Child Status Protection Act (CSPA)  and the benefits for aged-out children. He also learned that the Court of Appeals ruling would allow him to convert the petition made on his behalf by his mother in favor of Joseph.

But the US Citizenship and Immigration Services appealed the appellate court’s decision. The Supreme Court declined to apply “automatic conversion,” which means 10 more years of waiting for Joseph.

The case of Joseph is similar to another case that was elevated to the US Supreme Court. A Filipino named Norma Uy sought the CSPA aged-out protection for her daughter Ruth, 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. By then Ruth was already 23.

First come, first served

The method for petitioning families in the US is based on the numerical system. Visas are issued on a first come, first served basis based on the dates when American citizens or green card holders file petitions.

This results in backlogs, as there are more petitions than visas available.

For Filipinos, the waiting period may be more than 20 years for petitions filed by siblings and 15-20 years for those filed by US citizens for adult children.

Because of the ridiculously long wait, petitioners may die during the process, children will grow older and may no longer be eligible when visas become available.

To prevent family separation, US citizens may  use the ages of minor children at the time of the filing of the petition. But this rule is not extended to derivative children.

Petitions by US citizens for siblings and married adult children take two decades. Derivative minor children waiting with their parents, who were petitioned, grow older and reach majority age, a function of nature.

This fact was lost when the US Supreme Court decided that CSPA rules could not apply to derivative beneficiary children.

Justice Kagan said an aged-out child “should not receive credit for his parent’s wait when he has become old enough to live independently.”

The ruling is a huge setback for immigrant families who have been waiting to be reunited with aged-out children. The only chance for family reunification and change in policy is through legislation.

Meanwhile, Joseph and others like him will have to wait many more years to be reunited with their families.

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Atty. Lourdes Tancinco may be reached at [email protected] or at 02-7211963. Visit www.tancinco.com.