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.
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.
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.
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.