SCOTUS Decides Immigrants Can “Age-Out” of Visa Petitions

Written by on June 9, 2014 in Children, Courts, Family, Supreme Court with 9 Comments

7432022562_c66ef5ceb0_bIn Scialabba v. Cuellar de Osorio, a heavily-divided Supreme Court ruled against thousands of aspiring young immigrants who were included on their parents’ visa petitions as minors, but who turned 21—known as “aging-out”—before visas became available. Aging-out is tantamount to someone losing his place in the visa line with his parents; the majority ruled that in essence, despite having waited his turn in line, the mere fact that the child aged-out meant his time was lost and the case could not be converted into a more appropriate visa category.

Under the Court’s decision, these young adults now will likely be separated from family members for years—and in many cases, decades—to come. The court’s decision rejects the interpretation of the Child Status Protection Act (CSPA) offered by a bipartisan group of present and former members of Congress, who explained in an amicus curiae brief exactly how the law was intended to reunite families, not extend their separations.

The nine justices issued four opinions in the case. All agreed that the CSPA compensates an aged-out child by automatically converting his parent’s original visa petition to the appropriate category for him and by allowing him to retain the “priority date” of the original visa petition.

This benefit means that the aged-out child can be credited with the time already spent waiting for a visa with family when entering the line for the new visa. This prevents them from having to begin again at the back of the new visa line. The amicus curiae brief submitted by the American Immigration Council and other organizations provided case examples demonstrating the hardship faced by all family members when forced to separate for this reason.

The sole question before the court was to whom these CSPA benefits applied. Were all aged-out children entitled to the benefits, no matter what the original visa category, or just children who originally fell within one visa category—the children of lawful permanent residents?

On the question before the court there was little agreement. In particular, the justices were concerned with the concept of “automatic conversion.” How could one type of  petition filed by a parent’s relative—on which the child was originally included—automatically convert to one that was filed directly on behalf of the aged-out child?

Justice Alito’s answer, in his dissenting opinion, offers a straightforward, fair, and legally sound solution. He explains that if there is an appropriate category to which the petition can convert, it should be converted; if not, there will not be a conversion.

More importantly, he notes that with respect to the families in the case, by the time the parents had all become permanent residents and filed new petitions for their aged-out children, an appropriate category existed: that for adult children of lawful permanent residents. Because the aged-out children now fell within this visa category, Justice Alito would have held that they were entitled to the CSPA benefit.

Photo by Mark Fischer.

email

Tags: , , , , , , , ,

Subscribe

If you enjoyed this article, subscribe now to receive more just like it.

Subscribe via RSS Feed
  • Christina C.

    They really killed us, literally. How come they force us to spend so many years appart from our families? we were on the line! I spent 10 years for my mom´s priority date to become current and then they told me, “hey you’re out, you are not going with your family” and now they’re telling me “you’ll have to wait 10 more years alone in your country”, thats not fair. We wanted to do the things right and here’s our reward! Then they complain about so many illegal inmigrants, but hey you are forcing us to do what we dont want to do.

  • Olga Zakharova

    This decision will keep families of legal immigarnts apart for long time. The decision is unfair as it punishes parents and children who did not do anything wrong and tried to follow legal paths of immigarton. The narrow interpretation of CSPA by immigaration authorities did not provide any help to many families who waited in the long lines. What is the sense of the law when that law turned to be ambigous? If it does not work, it must be clarified.

  • mihireng

    So what does this mean? Does this mean the aged out children can retain priority date of the original petition?

    • Christina C.

      No, they didn’t give us credit for the time we’ve waited…. it’s as if we never existed!

      • GiGi

        This is extremely frustrating. I am an aged out child too ! i completely feel your frustration. After living and studying in this country for 10 years i was suddenly told to pick up and leave because i aged out ! For the past 7 years i have been away from my family, facing restrictions, not knowing where i belong and figuring out ways to get back into the line. Obama can pass executive order grant work permits and visas to legalize illegal and undocumented children but NOT children and young adults who have followed rules, studied in American schools and entered this country legally ! SHAME on this government for not coming up with a solution and keeping families in a limbo !

        • Christina C.

          I sooo agree with you, and I know! that´s so frustrating!. Yeah, I was hoping for Obama to take executive action on reducing green card waiting lines or something like that too, the world is upside down!.

    • Sarah
      • mihireng

        Yes I am sharing it on my facebook with friends and family to get as many signature as possible. Is it possible to get written signature? for the people who dont have account

Top