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9th Circuit Decision on Visa Petitions and Naturalization: Becoming an Immediate Relative Even if Over 21

Exciting news for certain children whose parents petitioned them who are waiting for a visa to become available! On February 14, 2018, the Ninth Circuit Court of Appeals came down with an important decision in Rodriguez Tovar v. Sessions. The Ninth Circuit rejected the Board of Immigration Appeals ("BIA")'s decision in Matter of Zamora-Molina, 25 I. & N. Dec. 606 (BIA 2011), which held that when a Lawful Permanent Resident ("LPR") parent petitions his minor child, and that parent later naturalizes, the child's age is his biological age, not his statutory age. The Ninth Circuit in Rodriguez Tovar held the contrary, specifically that USCIS will calculate the child's age on his parent's naturalization date based on the Child Status Protection Act ("CSPA"), when deciding whether he is an immediate relative of his naturalized parent (meaning under 21 child of a U.S. citizen).

FACTS

In Rodriguez Tovar, Margarito Rodriguez Tovar's father, an LPR, petitioned him for an immigrant visa as an F2A (minor child of an LPR) when Mr. Rodriguez Tovar was 18 years old. The petition was approved after pending for four years. Despite his visa petition being approved, Mr. Rodriguez Tovar had to wait for a visa to become available under the F2A category. A year later, Mr. Rodriguez Tovar's father naturalized. A year after that, the F2A visa became available. Mr. Rodriguez Tovar then filed an application for adjustment of status to become an LPR. Deciding that he had "aged out" of being an immediate relative because he was over 21 when his father naturalized, USCIS converted him to the F1 category (adult sons and daughters of U.S. citizens). At the time, there was still a several years long wait for a visa to become available for Mr. Rodriguez Tovar under the F1 category. His adjustment application was subsequently denied and he was placed in removal proceedings. The absurd result was that had Mr. Rodriguez Tovar's father remained an LPR, he would have had a visa available to him and he could have adjusted status.

AGE ON PARENT'S NATURALIZATION DATE: BIOLOGICAL AGE OR STATUTORY AGE?

The crux of the issue in this case was Mr. Rodriguez Tovar's age on his father's naturalization date. To be able to adjust status as an immediate relative (a category in which there is no cap on the number of visas available), his age had to be under 21 on his father's naturalization date. If his age were 21 or over, he would have automatically converted to the F1 category (adult sons and daughters of a U.S. citizen), meaning a visa was not available and he was not eligible to adjust status.

Under the CSPA age calculus, Mr. Rodriguez's age would be calculated as his biological age at the time his visa became available minus the time his visa petition was pending. Here, although Mr. Rodriguez Tovar was biologically 23 when his father naturalized, using the CSPA calculus and subtracting the four years his petition was pending from when his visa became available, his statutory age was actually 19. His statutory age would have made him an immediate relative when his father naturalized, while his biological age would have meant he had aged out of eligibility, and he would have been placed in the F1 category.

The question before the Court was whether the age on the parent's naturalization date refers to the statutory age, or the biological age of the child. The Ninth Circuit rejected the BIA's holding in Zamora-Molina, and held that USCIS must use the statutory age, meaning the biological age when the visa becomes available minus the time the petition was pending.

In making its decision, the Court interpreted the language of the statute and looked to congressional intent- reasoning that adopting this interpretation would prevent LPRs from being penalized for naturalizing, an absurd result.

WHOM THIS HELPS

This decision helps anyone (in the jurisdiction of the Ninth Circuit) whose LPR parent petitioned her when she was under 21, and whose parent subsequently naturalized. If the child's biological age when the visa became available minus the time her visa petition was pending is under 21, she may apply for adjustment of status as an immediate relative. In short, this decision will encourage LPR parents to naturalize and allow their children to remain in the United States and adjust their status as immediate relatives.

Of course, every case is distinct, and before submitting any application, you should talk to an immigration law expert.

Bean + Lloyd, LLP is an immigration law firm in Oakland, California, emphasizing family-based immigration, removal defense, and naturalization.

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