The U.S. Supreme Court today issued a decision that cuts off the derivative children of most preference category immigrants from one of the most valuable protections the Child Status Protection Act of 2002 (CSPA) offers qualifying children: the ability to retain their original priority dates once they “age out” based on the long waiting periods for immigrant visa numbers to become current.
Before the CSPA went into effect, children faced the following problem whenever someone filed a petition for them or they were waiting to gain derivative status under the immigration laws: A “child” is defined under U.S. immigration law as an unmarried son or daughter under the age of 21. In order to qualify to immigrate to the U.S. as the child of a U.S. citizen or permanent resident, therefore, a child had to receive his visa prior to his 21st birthday. However, the long wait times for visa petitions meant that by the time a child got to the front of the waiting line, she had often “aged out” of eligibility for a visa on account of having turned 21. In other words, under the immigration laws, she was no longer a “child” but instead a “son or daughter.” The CSPA changed the law in several ways to make things easier for children in danger of “aging out.” For example, in the case of the child of a U.S. citizen, the CSPA freezes his age as of the date that his parent files a visa petition for him. Even if he turns 21 before his petition is approved, he will not age out. Instead, in the eyes of the law, he will remain a child. Other provisions of the CSPA do such things as protect children from aging out on account of certain administrative delays in the processing of visa petitions and immigrant-visa applications.
In Scialabba v. Cuellar De Osorio, the Supreme Court had to decide what happens to derivative children under preference category immigrant petitions once they turn 21. Derivative children are the children of the prospective immigrant, the beneficiary of the immigrant visa petition. It works like this:
Andy, a U.S. citizen, files an immigrant visa petition for his sister, Bess, a foreign national. Andy is the petitioner, Bess is the beneficiary, and Bess’s children are derivative beneficiaries. When Bess immigrates to the U.S., her children will be able to immigrate at the same time or at a later date. However, if Bess’s children turn 21 before Andy’s petition for Bess becomes current, then they will no longer be derivatives. Because the wait times for petitions can be years and even decades long, it is quite possible that Bess’s children will age out before the petition is approved.
Unfortunately, the CSPA does not freeze the age of the children on the date the petition was filed, as it would for the children of a U.S. citizen. Therefore, in the example above, Bess’s children will not remain derivatives once they age out. And so, what happens to them? One possibility is that upon turning 21, the children will lose eligibility as derivatives but will retain their place in the waiting line for an immigrant visa, i.e., the priority date of the petition that Andy filed for Bess. If, in the future, they become eligible for another immigrant category, then they will not have to go to the back of the line again. In the above example, this could happen when Bess becomes a lawful permanent resident and files F2B petitions for them. But this is not what the Supreme Court decided. Instead, the Court held that when derivative children age out, they also lose the priority date of the petition to which they are derivative beneficiaries.
And so, if Bess’s children turn 21 before Andy’s petition becomes current, they will lose both eligibility for immigrant status as Bess’s children as well as the priority date of the petition (their place in line). Assuming that Bess is eventually able to become a permanent resident, she can file petitions for her children, but these petitions will start at the end of the line, and the children will have to wait years before becoming eligible for immigrant visas.