“Aging out” has a familiar ring among immigrants in this country. The primary reason is that we, immigrants, want to know if we can bring our children with us to the US when it is time to immigrate.
Children under 21 years old can accompany their parents whose visas have become current. Children 21 years and older are considered to have “aged out” and are not given a visa.
Two of the longest waiting times for non-immediate relatives are those whose petitions are filed in the F3 and F4 visa classification (married sons and daughters of US citizens and brothers and sisters of US citizens, respectively). From the time the petitions are filed, 15 to 23 years go by before the visa becomes available. But by then, the children of the F3 and F4 visa categories “age out.”
What should immigrant parents do? First, they go to the US, obtain green cards, then petition for their “aged-out” children in an F2B classification (over 21 and unmarried children of lawful permanent residents).
Unfortunately, the waiting time for an F2B classification is from eight to10 years. The parents who immigrate ahead will be separated from their children for 10 more years.
Acknowledging that aging-out is caused by an agency policy (USCIS delays and the quota system of visa availability which inevitably creates backlogs), Congress passed in 2002 the Child Status Protection Act (CSPA) to alleviate the situation.
CSPA provides rules on how children can immigrate with their parents even if they have reached age 21 or how to reduce the waiting time for joining their family that immigrated ahead. It allows the “aged out” children to retain or preserve the filing date of the original petition filed before they became 21 years old.
Unfortunately, the Board of Immigration Appeals (BIA) has taken an exception to this rule. BIA made it clear in one of its landmark decisions (In the Matter of Wang) that the “CSPA does not apply to all derivative beneficiaries.”
In effect, children of the primary beneficiaries petitioned by US citizen-parents and siblings, who have waited more years than the rest, are not allowed to retain and preserve the priority date of the original petition.
They have to start again at the end of the line and wait for the visas for another 10 to 15 years in addition to the 20 years that have already lapsed.
Outraged by the inequity, some immigrants raised the issue before the court, asserting that the CSPA must apply to children who are derivative-beneficiaries and allow them to retain and preserve the ‘priority’ date of the original petition filed by their US citizen petitioners.
On September 26, 2012, the 9th Circuit Court of Appeals decided in their favor. Applying the plain language of the relevant provision of the CSPA, the court ruled that “aged out” children of primary beneficiaries (“derivatives”) should be allowed to preserve and retain the filing date (as their priority date) of the original petition filed by the US petitioner parents or siblings. (De Osorio v Mayorkas (9-26-2012).
Because of this ruling, a significant amount of visa waiting time can be shortened for petitions subsequently filed for and in behalf of the “aged out” children. However, the USCIS may choose to appeal this decision to the Supreme Court before December 26, 2012.
Until directed otherwise by USCIS, this ruling will be applicable only to states within the jurisdiction of the 9th Circuit Court. Michigan is within the jurisdiction of the 6th Circuit Court of Appeals.