Written by: SWadhia

By: Shoba Sivaprasad Wadhia

On September 26, the Ninth Circuit Court of Appeals held in De Osorio v. Mayorkas that children who are under the age of 21 when they are listed as a “derivative” on a permanent residence application should be able to retain their space in line even if they turn 21 before the immigrant visa is issued.

The implications of De Osorio are significant, as it enables adult children to receive a permanent resident card in a more predictable and shorter timeframe than would be the case if they were required to begin the immigrant visa process anew upon turning age 21.

The issue in De Osorio is whether children who are named on visa petitions filed on behalf of their parents should remain eligible to apply for a visa after “aging out,” or turning 21, before the visa becomes available. The family immigration system is a complex design of Congress that is capped at 480,000 visas annually. Those deemed “immediate relatives” (spouses, children, parents of United States citizens) are not subject to this or any other quota. But the four other family categories (unmarried adult children of United States citizens, spouses and children under the age of 21 of green card holders, etc.) are subject to specific quotas within the 480,000 limit. When a petition is filed by a sponsor for a qualifying relative, the filing date is labeled as a “priority date”, which becomes the benchmark that is used by the agency to measure the wait time for a particular petition to reach the front of the quota line. The quotas created by Congress, coupled with the processing delays by the agency, create a paradigm where children listed as “derivatives” on their parents’ family-based visa petitions can turn 21 before their priority date becomes “current” and thus a visa is available. When children reach the age of 21, they no longer qualify as dependents of their parents on an immigrant visa petition. Adult-age children require an independent visa petition to immigrate to the United States.

The Ninth Circuit illustrated the problem as follows:

For, example, U.S. citizen Adele files a [visa] petition on behalf of her adult son Aron, and includes Aron’s daughter Naira as a derivative beneficiary. By the time Aron receives a visa, Naira is over twenty-one. Adele can no longer petition on Naira’s behalf, as there is no qualifying relation- ship between a grandmother and her adult granddaughter. Once Aron becomes an LPR, Aron may file a [new visa] petition [in a different visa category] for his daughter Naira.

Similarly, U.S. citizen Adele files a [visa] petition for her sister Kristen, and includes Kristen’s daughter Sandy as a derivative beneficiary. If Sandy is over twenty-one when Kristen receives her visa, Adele cannot petition for Sandy, because Adele cannot petition for her adult niece. Kristen may file a [new visa] petition [in a different visa category] for her daughter Sandy.

The question here is whether the original [visa] petition[s] should be automatically converted to [the new visa petitions], and if the [new visa] petition[s] retain the priority date of the [original] petitions.

To remedy the problem of children “aging out” of visa petitions filed by family members on behalf of their parents, Congress enacted the Child Status Protection Act (CSPA) in 2001. Among other things, the CSPA enables certain noncitizens who were children when they were listed as “derivatives” on their parents’ visa petitions to retain a priority date even after turning 21 before the visa becomes available. Specifically, the CSPA states:

Retention of priority date. If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d) of this section, the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition. 8 U.S.C. 1153(h)(3).

Despite the plain language of the CSPA, the Board of Immigration Appeals had previously held in Matter of Wang that the CSPA does not apply to a now-adult noncitizen who was previously listed as a derivative on a visa petition filed on behalf of the child’s parent. Matter of Wang, 25 I. & N. Dec. 28 (BIA 2009) Following Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), the Ninth Circuit rejected the Board’s analysis, concluding that the plain language of the CSPA unambiguously enables now-adult derivative beneficiaries of a visa petition to retain their priority date when a new visa petition is filed for them.

The implications of De Osorio are not merely theoretical. Under the Matter of Wang paradigm, parents were forced to leave their children behind or live with vulnerability in the United States because of the quota or processing delay. These children include DREAMers, entrepreneurs and those who have invested or wish to invest in the American Dream. The decision also benefits the agency, by freeing up the precious resources used by the agency to arrest and remove adult-children who “aged out” because of the troubled standard outlined in Matter of Wang (individuals who arguably, should have never been targeted as a matter of prosecutorial discretion).

The AILA amicus committee hails the court’s recognition about the limits of Chevron deference and safeguarding of individuals who have waited for years to emigrate under the family immigration system. Amicus briefs were filed by multiple entities, including the American Immigration Lawyers Association; Catholic Legal Immigration Network, Inc.; American Immigration Council; National Immigrant Justice Center; and Active Dreams, LLC.
See more AILA resources on CSPA.