Wednesday, December 2, 2015

US Supreme Court Defers to Board of Immigration Appeals in Aging Out of Derivatives

On June 2014, the highest court of the land has ruled that the interpretation of the Board of Immigration Appeals ("BIA") was correct with respect to the scope of protection afforded by the Child Status Protection Act for the purpose of protecting the aging out of minor children as derivative beneficiaries in the family preference categories of immigration.

US citizens and lawful permanent residents ("LPRs") are able to petition for certain family members to obtain immigrant visas. The principal beneficiary who is being sponsored by his or her US relative can in turn bring his or her spouse and minor children as accompanying derivative beneficiaries. The ruling by the US Supreme Court, in essence and for all practical purposes, limits the protection of the aging out of minor children to those minor derivative beneficiaries under the F2A preference category (spouses and children of lawful permanent residents) that age out and then, as a result, fall into the F2B preference category (unmarried sons and daughters 21 years of age and older of lawful permanent residents).

Much of the issue lies in the interpretation of which immigration petitions can be automatically converted under 8 USC § 1153(h)(3) for the protection of the aging out of minor derivative beneficiaries. The BIA determined that only those petitions that can be seamlessly converted from one family preference category to another without the need for a new sponsor are entitled to conversion and protection under the Child Status Protection Act. Under this determination, derivative beneficiary children under the F2A category who age out into the F2B category are able to enjoy the benefit of retaining the original priority date of when the F2A immigration petition was filed. This is because the petition of the derivative beneficiary child, who was then a minor and later becomes an adult, relates back to the same sponsoring US person, the child's parent.

On the other hand, F3 and F4 family category petitions cannot be seamlessly converted from one family preference category to another. When the derivative beneficiary child ages out, there is no other family preference category which the derivative beneficiary can fit into that can relate back to the same sponsoring US person in order to retain the original priority date.

Those principal beneficiaries under the F3 (married sons and daughters of US citizens) and F4 (brothers and sisters of US citizens) preference categories who wish to bring their spouse and children will not have the assurance that their children will be able to accompany them to the United States when their visa becomes available. The bureaucratic immigration process often takes years and even decades to complete. Currently, F3 and F4 categories take more than ten years from when an immigration petition is filed to when an immigration visa  number becomes available. Therefore, it would not be unusual for a minor derivative beneficiary to reach the age of 21 by the time an immigration visa number becomes available to the parent, the principal beneficiary.

Therefore, in the case of F3 and F4 petitions in which the principal beneficiary wishes to bring his or her minor child along to the US, if and when the the derivative minor child ages out, the principal beneficiary would have to immigrate to the US first, then file a new petition as a sponsoring LPR for his or her aged out child under the F2B category. A copy of the decision of the US Supreme Court can be found here, Scialabba v. Cuellar De Osorio, 134 S.Ct. 2191, 189 L.Ed.2d 98, 82 U.S.L.W. 4455 (2014).