Supreme Court rules certain minor children not entitled to priority date of parents

9 Jun 14

UNITED STATES

The U.S. Supreme Court has ruled that the Child Status Protection Act does not allow minor children who are derivative beneficiaries of an immigrant petition to retain the original priority date of the principal beneficiary.

The Court’s decision in Scialabba v. Cuellar de Osorio interprets a provision of the Act, 8 U.S.C. §1153(h), that addresses the issue of children who qualify as under the age of 21 for a green card petition but who “age out” by the time a visa becomes available. The ruling only affects certain child beneficiaries who age out; the statute still protects most children.

The case involved parents who were the principal beneficiaries of a family-based petition. After becoming lawful permanent residents, they filed for their aged-out children, arguing that the newly filed petition should receive the same priority date, or filing date, as their original petitions. They pointed out that the Act provides for “automatic conversion” of an aged-out child beneficiary’s petition to another appropriate adult category without any other changes, such as a change in the priority date.

The Board of Immigration Appeals disagreed, ruling that the Act only mitigates the aging out of children who are principal beneficiaries of the original petition, not the children in this case who are “derivative beneficiaries.”

On appeal, the en banc U.S. Court of Appeals for the Ninth Circuit held that the “automatic conversion” applied to all beneficiaries, including derivative beneficiaries, who age out while waiting for an available visa number.

But the Supreme Court reversed in a 5-4 ruling. Three justices said that the Act was ambiguous, and if the “automatic conversion” applied to derivative beneficiaries it would require finding a new qualifying sponsor and allowing aged-out derivative beneficiaries to cut in line ahead of those who have had qualifying relationships for a far longer time. Two justices concurred in the judgment, finding that the BIA’s interpretation was consistent with the unambiguous language of the statute.

BAL Analysis: The Supreme Court decision does not result in any change in practice within the agency, but represents a setback for advocates who are seeking to address the harsh consequences of long green card wait times. Please consult a BAL attorney with any questions regarding priority dates and their effect on family members.

Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@balglobal.com.