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:

  1. Determine the age of the CSPA applicant when the priority date became current.
  2. Deduct the time the petition was pending: the date the petition was acknowledged by the USCIS and the date it was approved. These dates can be found on the Notice of Action letters that the USCIS send to the visa petitioner.
  3. Example: Petition was filed on April 1, 1989.   It was approved on October 11, 1989. The priority date became available on November 9, 2010.  At the time, the visa beneficiary was already 29 years old.  The petition was pending for only six (months).  Deduct 6 months from the age of the visa beneficiary (29) and the age of the visa beneficiary would be 28 years and 6 months.  Since the age is not below 21, the applicant is NOT eligible for CSPA.

Options

Those who are adversely affected by the US Supreme Court Decision could explore other visa options:

  1. In the United States – apply for student visa or work visa both in the temporary or nonimmigrant categories.  The work visa could be H-1B or H-2B.  The student visa could be for academic (F-1) vocational,(M-1) or Exchange Student (J-1).  Once in the US, there could be a pathway to permanent residency – employer-sponsored visas in the EB3 category or family-based petitions, including fiance sponsorship.
  2. In Canada (which shares a border with the US) apply for permanent residency through the Federal Skilled Worker Program where 50 occupations are eligible for priority processing; apply for permanent residency through the Provincial Nominee Program; apply for permanent residency through the Canadian Experience Class or explore the Student to Resident Pathway.  In Canada, study permits come with work authorization. The US student visa holders have extremely rare option to work while studying during the first year.  Canada accepts immigrants on a points-based system, the US does not.
  3. In New Zealand – same Student to Resident pathway.  A one year graduate or post-secndary diploma in the Level 8 or 9 would enable the student to get a job search visa for at least a year, then be eligible for migration with a job offer through the Expression of Interest scheme.
  4. In Australia, same student to Resident pathway, especially for healthcare workers and education graduates who could take up Aged Care or Early Childhood Care courses in Queensland through Charlton Brown.  Australia also has a list of occupations eligible for skilled migration on a points-based system.  An applicant could qualify as an Independent Skilled Migrant or be sponsored by a specific State or Territory in Australia.
  5. Student to Resident Pathways similar to Canada and New Zealand is available in Ireland, but not in the UK where a student could be eligible for permanent residency only after switching status from student (Tier 4) to working (Tier 2) and working legally for 5 years.

 

For a free assessment of visa and migration options, send your complete and updated resume to options@visacenter.org or you can call the Immigrant Visa Center at (02) 634-8717.

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