Supreme Court to Hear Mayorkas v. Cuellar de Osorio on the Child Status Protection Act

Dont_Grow_UpThe Supreme Court has agreed to hear the case of Mayorkas v. Cuellar de Osorio. The issue in the case is whether a son or daughter who was the derivative beneficiary of a family-sponsored immigrant petition but “aged out” (didn’t qualify because he or she turned age 21) may apply the old petition’s priority date to a new petition. For background, including an explanation of who is covered, see here.

The U.S. Court of Appeals for the Ninth Circuit had ruled in Osorio v. Mayorkas that the old family-sponsored priority date may be applied to a new petition.

However, the U.S. Department of Justice filed a Petition for a Writ of Certiorari with the Supreme Court. On June 24, 2013, the Supreme Court granted that petition. The case has been scheduled for oral argument on December 10, 2013. A decision is expected from the Court by June or July 2014 when the Court’s term ends.

Pending the Supreme Court’s decision, the Ninth Circuit’s decision is stayed.

If you are covered by De Osorio, you should seek advice from an immigration lawyer now.

If you haven’t done so yet, it may be wise for a sponsor (such as a permanent resident parent) to file a new Form I-130, Petition for Alien Relative, on your behalf.

For most people, with the possible exception of persons in removal or deportation proceedings, it probably doesn’t make sense to file a Form I-485, Application to Adjust Status, or an immigrant visa application before the Supreme Court decides the case.

7 thoughts on “Supreme Court to Hear Mayorkas v. Cuellar de Osorio on the Child Status Protection Act”

  1. My family has an F3 priority date of March 2003 (which looks like it will become current within the next 6 weeks). But I am becoming 21 next week. We actually got some email from NVC and paid money and filed the Form DS-230, Immigrant Visa Application. Can I immigrate with my family. If not, can my parents file a Form I-130 for me that can be assigned the March 2003 priority date?

    1. Sara: If the NVC is processing your immigrant visa application, they’ve made at least a preliminary assessment that you seem eligible to immigrate as a derivative under the Child Status Protection Act (CSPA) because your age calculation for immigration purposes is under age 21. See here for a summary of how the government calculates this. Some tech-savvy lawyers have even made online CSPA calculators to do the math for you. (Note that I haven’t checked whether the calculator works).

      The bottom line is that CSPA stuff is complicated. I recommend you speak with a lawyer. You may find that you count as a “child” for CSPA purposes. Or, if not, you may need to see how the Supreme Court rules in Osorio to know whether you’ll be covered by the automatic conversion clause.

  2. I was a derivative beneficiary of my father when he filed for I-140 Immigrant Petition for Alien Worker and I aged out when the visa became available. My father has filed an I-130 Immigrant Petition for Alien Relative and I am under F2B category as I am over 21 and unmarried.
    Can this be applied to me so I can get the priority date when my father filed for I-140?
    The current visa priority date for my category is January 22, 2003 as I am from the Philippines. The I-140 filed by my father was on January 2004 while the I-130 he filed for me was on August 2010. 6-year saving time is a lot and would obviously be favorable.

    1. Christopher: The 9th Circuit’s decision in Osorio v. Mayorkas didn’t address whether section 203(h)(3) of the Immigration and Nationality Act (INA) (the automatic conversion clause) allows retention of the priority date when the derivative son or daughter’s original priority date was from an employment-based petition or diversity case. So the Supreme Court’s decision may not address that issue either. You may want to see a lawyer about beginning advocacy on your behalf now–although the lawyer may tell you that to save legal fees you have the option to wait for the Supreme Court’s decision in Osorio.

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