Court ruling speeds up many immigrant visa wait-times, but possibly delays others.

On Behalf of | Sep 27, 2012 | Firm News |

On September 26, 2012, the Ninth Circuit issued a decision which will speed up petitions for people who were included in a visa petition filed for one of their parents, but who later “aged out” of that petition when they turned twenty-one. Under this case, if their parents file a petition for them after becoming a resident, USCIS will allow them to keep their original priority date, saving many years of waiting.

Brief Background

Many employment and family-based visa categories include not only a “primary beneficiary” for whom the petition is filed, but also “derivative beneficiaries”: the spouse and single children under twenty-one years old of the primary beneficiary. For example, if a United States Citizen files an immigrant visa petition for an adult married daughter,

her daughter’s husband and minor children could also use that petition to file for residency.

Unfortunately, the law limits the number of people who can become residents under most visa categories to much less than those who want to apply for residency. This essentially creates a long waiting list in most visa categories of several years. As a result, many people who were children when someone filed a visa petition for a parent will be over twenty-one by the time that parent becomes eligible to file for residency. If the “child” is over twenty-one, he or she will no longer be included in the original visa petition.

To address this problem, there is a law called the “Child Status Protection Act”, or “CSPA”. One part of the law, which has been used for many years, allows derivative beneficiaries to subtract the years in which the visa petitions are being adjudicated from their actual age for immigration purposes. This process is fairly complicated, and beyond the scope of this article, but the result is that it allows some people who are over twenty-one to still count as “children” and be included in a visa petition filed by a parent.

New benefits for those who “aged out” of a parent’s petition.

However, what about people who were children when a visa petition was filed for a parent, but are now over twenty-one, even with the benefit of the CSPA? Under the

new case, De Osorio v. Mayorkas, many of them will be able to immigrate much faster than before.

Legally, De Osorio v. Mayorkas holds that CSPA grants aged-out derivative beneficiaries in all preference categories automatic conversion and priority date retention.

This decision reverses the Board of Immigration Appeals’ holding in Matter of Wang that automatic conversion of preference category and retention of priority date only applied to aged-out derivatives of principal applicants in the F-2A category, children of lawful permanent residents. The Ninth Circuit now confirms that the CSPA also grants automatic conversion of preference category and retention of priority date to all other visa categories.

Practically speaking, this means that if a derivative beneficiary has since aged out of visa petition filed for a parent, that parent should file a visa petition for his or her “child” after becoming a resident. Ordinarily, if a permanent resident parent files a visa petition for an adult unmarried child, that petition would be placed at the end of the waiting list for that visa classification.

Under De Osorio v. Mayorkas, however, that new visa petition will actually be treated as if it was filed at the same time as the one which the parent used to become a permanent resident. Rather than being at the end of the line, that visa petition will be given a spot in the waiting list as if it was filed many years earlier. For many foreign nationals, this means that they will be eligible to immigrate or adjust status much sooner than expected, if not immediately.

Delay for others?

One ominous note in the De Osorio decision is that the parties involved were not in agreement how people who take advantage of this new development will be counted in the limits applied to most immigrant visa categories. It is possible that the government could try to apply the new residents toward the current limits, which would mean that some others in this category may have to wait even longer than expected. It is even possible that there will be “retrogression,” in which people who had been informed they were eligible to file for residency will actually have to wait longer.

It is important to stress that it is not clear at all if there will be any retrogression, since the case is very new and there are a lot of details which will need to be worked out in the coming months or years. Still, for people who recently became eligible to file for residency in a preference category, they would be well advised to do so right away.

Other cautions

It appears that to take advantage of this new development, a former derivative beneficiary would need to remain unmarried until he or she becomes a resident. As explained, this process requires a new lawful permanent resident to file for the former “child” derivative beneficiary. Lawful permanent residents may file immigrant visa petitions for single sons or daughters, but not married sons or daughters.

Additionally, there are some serious questions which remain unanswered after this case. Therefore, foreign nationals over the age of twenty-one who were listed as derivatives on a visa petition as children should speak to an attorney to see whether they are now eligible to immigrate or adjust their status in the United States.