U.S. Supreme Court on the Child Status Protection Act
The U.S. Supreme Court heard an important case related to immigration on December 10, 2013. The case, Mayorkas v Cuellar de Osorio, involves the interpretation of provisions of the Child Status Protection Act (CSPA). A favorable decision in this case would facilitate family unity by expanding the current interpretation of the reach of the CSPA.
Background: CSPA Allows Certain Children to Enjoy Derivative Status
As a general matter, unmarried, minor children under the age of 21 are eligible to immigrate to the United States as derivative beneficiaries (dependents) in family- and employment-based permanent resident (green card) cases filed by a parent. However, the green card application process often takes years to complete, leading to many situations in which children who are well under 21 at the time the process begins "age out" before the green cards are issued. The CSPA is a law that was enacted in 2002 to address this, making it easier for these children to continue to qualify for green cards as derivatives, even after turning 21. The CSPA essentially freezes the age of the child for immigration law purposes, but only under certain circumstances, and only for a limited time, based upon a formula that takes into account a number of factors. More information on this complex law is provided in Child Status Protection Act Basics, Part 1 (28.Jun.2013) and Part 2 (12.Jul.2013).
Priority Retention Provisions at Issue
In addition to preventing certain dependents from aging out of eligibility as derivative beneficiaries, the CSPA contains provisions for retention of priority dates in the event that an age out occurs. Specifically, the CSPA provides that if a child's age is considered to be over 21 even under the CSPA formula, the petition shall be automatically converted to the appropriate category with the priority date of the initial petition. Put simply, this allows an aged out child to have a new case automatically with the earlier priority date.
To illustrate how this works, suppose a U.S. citizen files a family-based, fourth preference (FB4) petition for his sister who is a foreign national. The sister has a child who is under 21 at the time the case is filed. By the time the green card is issued, years have passed and the child no longer qualifies as a derivative under the age of 21, even after using the CSPA formula. As the adult child of a lawful permanent resident, however, the child would now qualify under the family-based, second preference (FB2B) category. If allowed to retain the priority date from the FB4 case, the child's FB2B case is likely to have a current priority date.
Broad Application Urged
The debate before the U.S. Supreme Court is how broadly the retention provisions should apply. The Board of Immigration Appeals (BIA) ruled in 2009 that the provisions were very limited. Under the BIA interpretation, the retention option is only available if the initial case filing was in the family-based, second preference A (FB2A) category. The FB2A category applies to spouses and minor (under 21) children of permanent residents. In 2012, the Ninth Circuit Court of Appeals ruled that the CSPA should be interpreted more broadly, with the retention provisions applying to family-based, third (FB3) and fourth (FB4) preference categories, as well as FB2A. Immigration advocates, including the American Immigration Lawyers Association (AILA) and the American Immigration Council (AIC), have filed briefs in support of a broad interpretation.
The matters under consideration by the Supreme Court have potentially far-reaching implications. If the court rules in favor of a broad CSPA interpretation, it will reduce the incidence of family separation due to the aging out of children. The CSPA was intended to increase family unity, and the U.S. Supreme Court now has an opportunity to issue a ruling that will help to further the purpose of this law. The Murthy Law Firm strongly supports these efforts to keep families together, and will provide updates on MurthyDotCom once the court hands down its decision.
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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.