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June 17, 2014

In Scialabba v. Cuellar de Osorio, a divided Supreme Court ruled last week that young immigrants who were included in their parents’ visa petition, but “aged out” – that is, turned 21 – before their visas became current, would not be able to retain the original priority date of their parents’ petition.  This is a tremendous setback for immigrant families where the parents ultimately immigrated to the U.S. without their children and who now must wait even longer before the families can be reunited in the U.S.

The majority decision upholds the BIA’s narrow interpretation of the Child Status Protection Act (“CSPA”) in Matter of Wang under which aged-out children only can benefit from the original priority date of their parents’ visa petition if they could automatically convert into another family-based category.  The majority concluded that “automatic conversion” meant that the child would not need a new sponsor, but would seamlessly move into another family-based category.  This effectively narrows the range of aged-out children who could retain their parents’ original priority date to minor children of LPRs  (family-based preference category 2A) who become either adult, unmarried children of LPRs (family-based preference category 2B) or adult, unmarried children of U.S. citizens (family-based preference category 1) while they are waiting for their priority date to become current. All other children who age out while waiting for priority dates to become current are unable to receive credit for the time they already spent waiting for a visa.

The four dissenting Justices—Justices Alito, Sotomayor, Breyer and Thomas—found that the CSPA extended priority date retention to all children who aged out.

Example of aged-out child who gets to benefit from priority date retention:

Joan is a lawful permanent resident who marries a Mexican national, Gael.  They have a seventeen-year old son, Mateo.  When Joan sponsors Gael, Mateo is included in Gael’s visa petition.  As the spouse and minor child of a lawful permanent resident, Gael and Mateo are in family-based preference category 2A.  There is a three-year backlog for F-2A for Mexican nationals.

By the time Gael and Mateo’s priority date becomes current, Mateo has turned 21.  He no longer can qualify under the F-2A category because he has aged out.  However, he can keep his original priority date when he moves to family-based preference category F-2B as the adult child of an LPR or, if Joan has naturalized by this time, to family-based preference category F-1 as the adult child of a U.S. citizen. In both cases, retention of the original priority date will help him significantly because F-2B and F-1 for Mexican nationals are extremely backlogged. 

Example of aged-out child who does not get to benefit from priority date retention:

Rita is a U.S. citizen and sponsors her sister, Poonam, who is an Indian national.  Poonam is married to an Indian national and together they have two children, Deepak and Sapna, who are fourteen and eight respectively.  Poonam’s spouse and children are derivative beneficiaries of her visa petition, which falls in the F-4 family-based category as sibling of a U.S. citizen.  There is about a twelve-year backlog for Indian nationals in the F-4 category.

By the time Poonam’s priority date becomes current, Deepak has aged out.  Once Poonam obtains lawful permanent residence status, she can sponsor Deepak as the adult, unmarried son of a lawful permanent resident, but Deepak cannot benefit from Poonam’s original priority date.  According to the majority decision, this is because Deepak did not automatically convert into another family-based category, but needed his mother to sponsor him.  His relationship to Rita, as her nephew, is not a qualifying relationship for purposes of lawful permanent residence.   Deepak does not get any credit for all the time spent waiting with Poonam and will receive a new priority date when Poonam sponsors him.

Written by Nadia Yakoob-Sway
SW Law Group, P.C.