The Ninth Circuit in De Osorio v. Mayorkas held that the plain language of CSPA (Child Status Protection Act) unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries.
Before this case, when these beneficiaries aged out prior to their parents becoming permanent residents, a new I-130 petition filed by their parents for them would have a new priority date, which means they would have to wait several years before they can immigrate or apply for a green card, in some cases over ten years. With this decision, the old priority date of the I-130 filed for their parents, for which they were derivative beneficiaries, would be retained. So that new I-130 that the LPR (lawful permanent resident) parent files for the aged-out son or daughter, could have that old 1985 or so priority date, speeding up the immigrant visa or permanent resident (green card) process by over a decade in some categories.
I have come across probably over a hundred consultations over the past three years in which parents have asked about what could be done for their aged-out children. Being Filipino myself, I’ve heard stories from several Filipino F4 (sibling petition) beneficiaries who waited at least twenty two years for their immigrant visas to be approved, only to realize they cannot bring their children, most of whom were just babies when they were first petitioned. In most cases, the honest answer has been to file an I-130 again and wait in line, and “hope” that a new case comes out.
Well, this new case has come out in De Osorio v. Majorkas. The decision in the class-action lawsuit against the United States Citizenship and Immigration Service is a victory for tens of thousands of people who lost their priority status upon turning 21, as their parents faced long waits due to backlogs in the immigration systems. Filipino immigrants for example who were petitioned by their siblings were never able to bring their children with them because the waiting time for priority dates to be current has been over 21 years for a while. So all their children aged-out by the time immigrant visas become available. You can have a one month old child when your brother petitioned for you, wait 22 years for priority dates to be current, and your child will automatically over-age. So you needed to petition your child and wait over a decade again. But with this new case, if that parent files an I-130 for their 25-year old daughter, the I-130 F4 priority date in the 1980s would be retained, which obviously is now current.
Below is a quoted section from the 9th Circuit in their decision, providing you with their summary and the relevant portion of the case.
“Appellants became lawful permanent residents and immigrated to the United States. However, due to visa quotas and a serious backlog, by the time Appellants received their family-sponsored visas, their children were no longer eligible to accompany them as recipients of derivative visas, which are available only to children under the age of twenty-one. Their children had “aged out” of eligibility.
‘The question before us is whether these children are entitled to relief under the Child Status Protection Act (“CSPA”), 8 U.S.C. § 1153(h). The CSPA provides, among other things, that when certain aged-out aliens apply for visas under a new category for adults, they may retain the filing date of the visa petition for which they were listed as derivative beneficiaries when they were children. This ensures that visas are available quickly, rather than requiring the now-adult aliens to wait many more years in a new visa line.
‘The United States Citizenship and Immigration Services (“USCIS”) denied Appellants’ requests for priority date retention under the CSPA. USCIS relied on the Board of Immigration Appeals’ (“BIA”) decision in Matter of Wang, 25 I. & N. Dec. 28 (BIA 2009) that the CSPA does not apply to all derivative beneficiaries. The district court, deferring to the BIA’s interpretation, granted summary judgment to USCIS in two separate cases. We reverse.
‘We conclude that the plain language of the CSPA unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries. The BIA’s interpretation of the statute conflicts with the plain language of the CSPA, and it is not entitled to deference.”
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