After almost 12 years, the final answer is out: those who aged out or turned 21 while waiting for their parent's immigrant visas are not eligible to use the original priority date of their parent's petition. The good news is we provide the most viable options. Read on for one that applies to you.
US Supreme Court Decision on CSPA: Not Favorable to Aged Out Visa Beneficiaries, Alternative Visa Options
After almost 12 years, the final answer to the aged-out question has been issued by the U.S. Supreme Court.
The Child Status Protection Act was signed into law in August 6, 2002.
The provision that has been the most sought after – and thus most awaited – is the retention issue: should a child who has aged out and was deemed not eligible to be a derivative beneficiary of the parent’s petition be allowed to use or retain the original priority date of the parent’s petition instead of a new petition filed by the parent after being admitted into the United States?
Example: The father of Andy was petitioned by his U.S. citizen brother on April 1, 1989. It was a petition of sibling to sibling categorized as F4. At that time, Andy was just 5 years old. The priority date of Andy’s father – Delfin - became available in July of 2010.
At the time, Andy was 26 years old. His name was not included on the list of derivative beneficiaries of his father’s petition. Andy has two other siblings: Bernard, 18 and Cathy, 14. Both were able to migrate with their parent since both were below 21. Andy was left behind.
Upon arrival in the US and after receiving his green card, Delfin filed a petition for him. Since Andy was over 21 and unmarried and his father petitioner is a green card holder Andy’s preference category is F2B. His priority date – November 9, 2010 - was the date his father’s petition was acknowledged by the U.S. Citizenship and Immigration Services (USCIS).
Delfin consulted with a lawyer in the US and was advised to contact the USCIS to argue that Andy should be able to apply for his immigrant visa since the Child Status Protection Act says, the aged-out visa beneficiary (Andy) should be able to use (or retain) the original priority date of his father (Aril 1, 1989) (Delfin) instead of using the second or later priority date of his F2B petition (November 9, 2010).
The ability to retain the original priority date has been the most contentious – most awaited. Different District Courts in the United States issued conflicting rulings. Because of this, the issue was raised to the U.S. Supreme Court for the final decision on whether visa beneficiaries like Andy should be able to retain the parent’s original priority date.
On June 9, 2014, the U.S. Supreme Court said no.
The only visa beneficiaries who could benefit from the CSPA would be those who turned 21 when the priority date became current but after using the State Department and USCIS formula for eligibility turned out to be less than 21 years old. The formulas is shown below:
Those who are adversely affected by the US Supreme Court Decision could explore other visa options:
For a free assessment of visa and migration options, send your complete and updated resume to firstname.lastname@example.org or you can call the Immigrant Visa Center at (02) 634-8717.