Immigration Victory for “Aged Out” Sons & Daughters: De Osorio v. Mayorkas (9th Cir. 2012) Interprets the Child Status Protection Act

The U.S. Court of Appeals for the Ninth Circuit has held that 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. This may help you immigrate years faster.

The holding came in De Osorio v. Mayorkas, 2012 WL 4373336, by the U.S. Court of Appeals for the Ninth Circuit on September 26, 2012. The plaintiffs challenged how the U.S. Citizenship and Immigration Services (USCIS) interprets a 2002 statute called the Child Status Protection Act (CSPA), Pub. L. No. 107-208, 116 Stat. 927.

See Jan. 31, 2013 update: Government Asks Supreme Court to Review Osorio v. Mayorkas (9th Cir. 2012) on the Child Status Protection Act

Who Is Covered?

You are covered by De Osorio if both of the following apply to you:

1. Your parent immigrated as the direct beneficiary on a family-sponsored preference petition in any of the following categories:

F1: Unmarried son or daughter (21 or older) of U.S. citizens
F2A: Spouse or child (under 21) of lawful permanent resident
F2B: Unmarried sons and daughters (21 or older) of lawful permanent resident
F3: Married sons and married daughters of U.S. citizens
F4: Brothers and sisters of U.S. citizens

2. You “aged out,” meaning that you didn’t qualify as a derivative beneficiary (able to immigrate with your parent) because you turned 21.

Keep reading for more details.

An Example

Ms. Zhang was sponsored by her U.S. citizen sister. She waited about 12 years to immigrate on the basis of the sister’s petition. By the time she was able to immigrate, her daughter had “aged out” and so was unable to accompany Ms. Zhang to the U.S. However, upon getting her green card, Ms. Wang filed an F2B petition on behalf of her daughter. Although the normal waiting list for the F2B petition is about eight years, the daughter can immigrate immediately by applying the old priority date to the new petition.

Background

Under U.S. immigration law, each preference category has an annual quota, so waiting lists have formed. People wait in line depending on their preference category, nationality, and their filing date (“priority date”). The State Department’s monthly “Visa Bulletin” shows who has reached the front of each line.

It used to be that children would “age out” simply by turning 21 before immigrating. Then, in 2002, Congress passed the Child Status Protection Act to alleviate some problems caused by aging out. It does two things:

First, the CSPA deducts from the son or daughter’s “age” for immigration purposes the time that USCIS processing takes. This applies to any F2A petition, or to any family-sponsored or employment-based petition to which the son or daughter is a derivative beneficiary.

Second, and more relevant to the current discussion, the CSPA sought to alleviate hardship due to the passage of time between when USCIS approves a petition and when a visa becomes available as shown on the Visa Bulletin. The CSPA states that if son or daughter has aged out from qualifying as a derivative beneficiary of a family-based petition, employment-based petition, or diversity petition, then the petition

shall automatically be converted to the appropriate category and the alien shall retain the original priority date.

By retaining the original priority, the son or daughter can use that date for a new petition. Otherwise, he or she would have to go to the back of the line for the new preference category, and might wait many more years for a visa.

That automatic conversion clause, incorporated at section 203(h)(3) of the Immigration and Nationality Act, was not written very clearly and has become the subject of litigation. It was interpreted by the U.S. Department of Justice’s Board of Immigration Appeals, in Matter of Wang, 25 I. & N. Dec. 28 (BIA 2009), to apply only if the same petitioner files the new petition.

But in De Osorio, the Ninth Circuit reversed the Board’s decision in Matter of Wang: any new family-sponsored preference petition can retain the priority date of the earlier petition.

What to Do Now

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, asking that USCIS apply the old priority date to the new petition.

Or, if a new petition has already been approved, you may be able to ask that the old priority date be applied to it. If you are in the U.S., you may be able to ask for this as part of a Form I-485, Application to Adjust Status. If you are applying for an immigrant visas abroad, you may be able to ask that either the USCIS or the State Department apply the old priority date to the new petition.

De Osorio is an important victory in the struggle for the rights of “aged out” sons and daughters. But the struggle is not over. The decision was en banc, and the vote was split 6 to 5. It overturned a 3-judge panel’s prior decision.

For one thing, the government could appeal the Ninth Circuit’s decision to the U.S. Supreme Court before the December 26 deadline. Only certain people should consider filing a Form I-485 before that deadline, such as

  • Persons in removal or deportation proceedings; and
  • Persons who are in lawful immigration status.

Also, the Ninth Circuit’s decision adds to the patchwork of different rules for different places:

  • The Ninth Circuit decision is binding just for cases within the court’s jurisdiction, which is California, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, and the State of Washington.
  • In the Fifth Circuit, the holding of Khalid v. Holder, 655 F.3d 363 (5th Cir. 2011), is similar to the Ninth Circuit’s decision. It’s binding in Louisiana, Mississippi, and Texas.
  • In the rest of the country, Matter of Wang applies. Notably, in the Second Circuit, Li v. Renaud, 654 F.3d 376 (2nd Cir. 2011), affirmed Matter of Wang. That court decision is binding in Connecticut, New York, and Vermont.

In the absence of a Supreme Court decision, to create nationwide uniformity, it’s possible that the Board of Immigration Appeals could revisit its holding in Matter of Wang in light of De Osorio, or that USCIS could agree to follow De Osorio nationwide.

Another issue which the circuit court cases have not addressed is when section 203(h)(3) 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.

14 comments

  1. Nice article. Can a aged-out request for priority date retention first and if retained then file I485?
    By 9th circuit jurisdiction, does it depend on where the aged out lives now or where the 2nd application was filed (WAC…)?

    Thank you

    1. @SA: Do I understand your question? You aged out while waiting to immigrate as a derivative beneficiary of a Form I-130, Petition for Alien Relative, on behalf of your parent. Then, after your parent immigrated, your parent filed a 2nd petition for you. Now, the question is how can you be assigned the 1st petition’s priority date without filing a Form I-485, Application to Adjust Status (or an immigrant visa application at a U.S. Consulate).

      One option may be to have your parent file a 3rd petition in the same preference category as the 2nd. If Osorio applies, then the 3rd petition should be assigned the priority date of the 1st petition.

      You also ask about whether Osorio applies: For purposes of USCIS adjudication of a stand-alone I-130, the Osorio decision would apply to an officer sitting within the 9th Circuit’s jurisdiction. That would normally be the case if the petitioner resides within the 9th Circuit.

      This stuff is tricky. Seek advice from a lawyer based on all the facts of your case.

  2. what if i my parent got his green card through employment and i was aged out because it took them 10 yrs to get the visa available?… is this law just for family sponsored? what about beneficiary of employment based applicant…

    1. @SJ: Excellent question! Section 203(h)(3) mentions that for sons and daughters who have aged out “for the purposes of subsection[] … (d),” the “petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date.” Subsection (d) includes derivative beneficiaries of family-sponsored petitions, employment-based petitions, and diversity cases. So you may have an argument that you can retain the old priority date from your parent’s employment-based petition. But in Matter of Wang, the BIA held that priority date retention only applies where the same family-based petitioner files both petitions. The De Osorio court specifically stated that it was only overturning Matter of Wang’s interpretation of 203(h)(3) as it relates to beneficiaries of family-based petitions. So, currently, aged-out sons and daughters of employment-based petition beneficiaries are still out of luck, barring future litigation or policy reform.

  3. @Gary: Thank you for the quick response. Your deduction is absolutely correct about my situation. I was indeed a derivative under F4 on the 1st petition and now a 2nd petition has been approved under F2B. Apparently the approved 2nd petition file is with NVC now and I have recently emailed and mailed a letter explaining my situation and the recent 9th circuit ruling to both USCIS (California) and NVC. Given that the 2nd petition was filed under CSC, I have requested them to retain the priority date from the 1st petition. Crossing my finger at this point. If this works, then it will be a lucky break for me. You might be right about the 3rd petition. I did not think about that. I will ask this to USCIS/NVC if they deny my written request for retention of PD.

    What I am not sure and also concerned is whether, the fact that 2nd was filed under CSC is sufficient to receive benefit from the recent 9th ruling or whether USCIS/NVC will look into where the beneficiary and/or the petitioner lives today. I (beneficiary) currently live under 5th circuit.

  4. Hi Gary,

    Great Article. I want to ask if I could file now for AOS since I am covered by De Osorio? Or Do I need to wait if the government appeals the decision to the supreme court until December 26?
    What are the chances for me to get approved or what will happen if I will apply now for AOS?

    Thank you..

  5. @ET: Great question. The government could appeal the Ninth Circuit’s decision to the U.S. Supreme Court before the December 26 deadline. If the government ultimately prevails, then a pending I-485 filed based on reliance on De Osorio could be denied. That’s an acceptable risk for some people to take (e.g., some people who are in deportation proceedings and certain people in lawful H-1 or L-1 status). For others, the risk of denial of the I-485 is not an acceptable risk because of the cost involved, the impact on their ability to prove nonimmigrant intent for purposes of other visa applications, and/or the risk that their unlawful presence in the U.S. will come to the government’s attention, for example. So, you should consider filing an I-485 before December 26 an aggressive strategy, and you should speak with your lawyer about whether that’s appropriate in your case.

  6. @Gary: Thank you for the info. Do you think with the recent immigration reform movement and renewed awareness, that it might actually have an impact on the government in terms that they might not appeal to supreme court against Ninth Circuit’s decision, instead adopt it since current administration has been talking about some kind of comprehensive immigration reform?

    thanks

  7. I hope the supreme court and the us government would have a uniform decision regarding this matter for all the US states . We want to be reunited with our parents soon. :,(

  8. Two of my children were not able to go with us when we immigrated in 2012. They aged out. Do I have to file a Form I-130 now, or should I wait for a decision in the Mayorkas v. Cuellar de Osorio case? If I file a new I-130, will it be assigned the old priority date?

    1. If you haven’t done so yet, it may be wise to file a new Form I-130, Petition for Alien Relative, on behalf of your sons and/or daughters. Consult an immigration attorney. (Yes, our firm can help.)

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