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The Child Status Protection Act: What happens to "Aged-Out" Beneficiaries Now?
The Child Status Protection Act (CSPA)
Before the Child Status Protection Act (CSPA), children who were beneficiaries or derivative beneficiaries of family sponsored visa applications often "aged out" and were unable to immigrate as a "child" under the immigration laws. This happened quite often as a result of (1) the long wait time before the applications's priority date became current, which could be 7 years or longer, and (2) under immigration law, a person only qualifies as a "child" if they are unmarried and under the age of 21. Thus, for families immigrating with children, there was the stark reality that a child could be left behind.
To address this problem, and promote family unity, Congress enacted the Child Status Protection Act (CSPA). The CSPA offered immigration relief to potentially "aged out" children by:
- "Freezing" the age of the child if the visa was filed by a U.S. citizen parent;
- "Freezing" the age of the child if the visa was filed by a Lawful Permanent Resident (LPR) parent who then naturalizes;
- "Freezing" the age of the child if a married son/daughter of a U.S. citizen becomes divorced or is widowed; and
- Providing a mathematical formula which allows a beneficiary's present age to be modified by subtracting out the time it took for the visa to be approved resulting in a "CSPA age." The time subtracted from a beneficiary's age may allow a beneficiary who would be considered an adult son/daughter to revert back to a "child" under immigration law.
In addition to preserving a beneficiary's age so that s/he may retain "child" status, the CSPA also allowed for "automatic conversion" between visa categories and retention of priority dates. INA §203(h)(3), 8 U.S.C. §1153(h)(3). Unfortunately, because there were varying interpretations among the different courts as to who could receive this benefit, the Supreme Court chose to address the issue in Scialabba v. Cuellar de Osario, (formerly known as Mayorkas v. Cuellar de Osario).
Scialabba v. Cuellar de Osario
On June 9, 2014, the U.S. Supreme Court issued a ruling in Scialabba v. Cuellar de Osario. In the decision, the Court deferred to the BIA’s narrow interpretation of INA §203(h)(3), 8 U.S.C. §1153(h)(3), sharply limiting which derivative beneficiaries of visa petitions are eligible to retain their parents’ priority dates.
The question addressed by the Court in Scialabba v. Cuellar de Osorio is: who is permitted to benefit from automatic conversion, and thus retain the original priority date from a previous filing? Does the CSPA allow the pending visa application to retain its place in the queue for visas only if the “aged-out” applicant would have qualified as the beneficiary of a visa petition on his or her own, without needing a different sponsor? Or would it also allow petitions for “aged-out” applicants who were derivative beneficiaries on their parents’ visa application to retain their original priority dates?
In Matter of Wang, 25 I&N Dec. 28 (BIA 2009), the BIA chose to interpret the stature narrowly. This effectively allowed automatic conversion, and retention of priority date, for only principal and derivative beneficiaries of family 2A preference petitions, but not the derivative beneficiaries of other categories of preference petitions.
The Court, in a plurality opinion, concluded that the key provision of the CSPA “does not speak unambiguously” to the question presented. Even if the provision did not require the BIA to make a distinction between the two groups of aged-out beneficiaries, Justice Kagan wrote for the plurality, the BIA’s interpretation was reasonable, and therefore entitled to deference.
Ramifications for the "Child"
On its face, this decision is not a favorable one for aged-out children who have been waiting for years for their parents' priority date to become current. Should they age-out before the priority date on a parent's visa application becomes current, those individuals must go, in effect, to the back of the line on a new petition, filed by a parent under the Family 2B preference. The backlog for such petitions typically exceeds seven years.
However, in her opinion, Justice Kagan noted, “we hold only that §1153(h)(3) permits—not that it requires—the Board’s decision to so distinguish among aged out beneficiaries” (emphasis added). This leaves room for the BIA to reconsider its position on this matter in the future.
If you are concerned about aging-out and the effect of this decision on your child, we invite you to contact the Law Offices of Van T. Doan for more information and guidance.
Categories: Immigration Law