U.S. Supreme Court Ruling Requires Many Children to Restart the Immigration Process When They Turn 21

by Jennifer A. Grady, Esq. and Anthony Mance, Esq.

ImageIn a divided 5-4 decision on June 9, 2014, the United States Supreme Court struck a blow to the Child Status Protection Act (CSPA), a law that preserves an applicant’s “minor” status during the often lengthy wait time for an immigrant visa. In upholding the Board of Immigration Appeals’ restrictive interpretation of the Child Status Protection Act (CSPA) in Scialabba v. Vuellar de Osario, the Court addressed the issue involving immigrant Permanent Resident petitions on behalf of individuals with dependent children who “age out” (turn 21) while their petition is pending.

Under this decision, once these children “age-out”, they will essentially lose their place in the visa line alongside their parents. The Supreme Court majority ruled that in essence, despite having waited his or her turn in line, once the child reaches the age of 21 and “ages out”, the child has to find his or her own basis for applying for a Green Card and start the process over again. For many, the only basis that will be available to an adult child of a Permanent Resident, is acting as a derivative beneficiary of their parents’ application. In practice this will mean not only having to wait for their parents to obtain their own Green Card first, but also having to wait for a Green Card to become available for their own category.

What is the CSPA?

Under the CSPA, a primary beneficiary of a family-based visa petition is permitted to include his or her children, under the age of 21, in the visa petition as “derivative” beneficiaries. Derivative children “lock in” their minor status until a visa becomes available, regardless of their actual age when it finally becomes available—often decades later.

The CSPA amended the Immigration Nationality Act (INA) in 2002 by changing who qualifies as a “child” for purposes of immigration.  A “child” is defined as an individual who is unmarried and under the age of 21.  Before CSPA took effect on August 6, 2002, a beneficiary who turned 21 at any time prior to receiving Permanent Residence could not be considered a “child” for immigration purposes.  Congress recognized that many beneficiaries were aging out because of large backlogs and long processing times for visa petitions, so it allowed for adult children over the age of 21 to “freeze” their filing date.  The CSPA can protect “child” status for family-based immigrants, employment-based immigrants, and some humanitarian program immigrants (refugees, asylees, and VAWA).

The Supreme Court’s Decision

ImageThe issue presented to the Supreme Court in was whether the CSPA applied to (1) all children being included in their parent’s Green Card application, or (2) only to those who could show that they already qualify for their own Green Card classification separate from their parent’s qualifications. In other words, should all children being included in a parent’s Green Card application be allowed to freeze their ages, or only those who could apply for a Green Card on their own based on a personal status?

In its decision, the Supreme Court sided with the Obama Administration in finding that the CSPA only applies to the small number of “aged out” derivative beneficiaries that would have qualified for a valid adult category separately. Writing for the majority, Justice Elena Kagan stated that the law directs immigration officials to automatically convert a 21-year-old’s petition into a category for adults.

The consequence of the Supreme Court’s decision is that a majority of the derivative children that have aged out or who will age out in the future will be forced to start the process over again as primary rather than derivative beneficiaries. Depending on the visa preference category and the applicant’s country of origin, this could add years or even decades to the wait time.

The Good News

Of note, the CSPA applies only to family-based Green Card cases. For employment-based Green Card cases, a beneficiary is permitted to bring his or her spouse and minor (under age 21) children to the US as Permanent Residents. Should a child “age out” prior to an employment-based green card being awarded, that child would have to find their own basis for applying for a green card. In this case it would most likely be the adult child of a Green Card holder.

Example

Consider the following as an example: A father is currently the beneficiary of an F4 family-based preference category as the sibling of a US citizen. He has an unmarried son who is currently 18 years old. The son is being included as the unmarried child (under the age of 21) of a qualified beneficiary. The current wait time for a visa to become available for the father is four years. Prior to the recent Supreme Court decision, the son could “freeze” his age at 18 regardless of how old he actually was at the time a visa became available. With the current ruling however, once the son turned 21, if the visa was not yet available, he would be required to start the entire process over again once his father obtained a Green Card. He would apply as the F2B unmarried, adult (21 or over) son of a permanent resident. He would also be required to wait until a Green Card became available for that category.  See the Department of State Visa Bulletin for the most up-to-date waiting times based on family preference visa categories.

What Does this mean for Immigrant Children Near or Over the Age of 21?

In light of these developments, we strongly urge anyone awaiting the availability of a family-based Green Card, or anyone intending on starting the process who has a child that may be effected by this ruling to contact our firm for an evaluation of the facts specific to their case. While this ruling will most likely have a negative effect on many applicants, proper planning may help reduce the time a child will have to wait to join their parents as Permanent Residents.

To schedule a complimentary 15-minute consultation with one of The Grady Firm attorneys, fill out a Contact Request Form, or call (323) 450-9010.

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About gradyfirm

The Grady Firm attorneys specialize in helping businesses grow and succeed through employment, business, immigration, and intellectual property law advising for clients in California. In addition, we help foreign entrepreneurs establish a US presence and obtain the appropriate visas for their owners and employees. WE PROVIDE THE FOLLOWING BUSINESS SOLUTIONS: BUSINESS ADVISING: Business formation, contract drafting, coaching/advising, succession planning, lease review, and contract negotiation. EMPLOYMENT LAW: We teach employers how to become compliant with California employment law, draft Employee Handbooks, and providing sexual harassment training. We also help resolve disputes between employers and employees regarding wage and hour, discrimination, and harassment issues. IMMIGRATION: We help build business work forces and reunite families by preparing visa, Green Card, and citizenship applications based on family relations, employment, and investment. INTELLECTUAL PROPERTY: trademarks, copyright The Grady Firm has offices in Beverly Hills and San Diego, California; and serves clients remotely from across the globe. Our attorneys are licensed to practice immigration law in all 50 states. Learn more about us at www.gradyfirm.com.

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