The twin cases of De Osorio v. Mukasey and Costelo v. Napolitano, both decided by the Ninth Circuit Court of Appeals on September 26, 2012 now allows many children who were included in their parents’ petitions as derivative beneficiaries, but who “aged-out” or turned 21 before immigrant visas became available to them, to “recapture” the priority date of their parents’ original petition.
Interpreting Subsection h(3) of the Child Status Protection Act (“CSPA) – the “priority date retention clause”, the Ninth Circuit ruled that subsection (h)(3) requires that when aliens age out of child status for purposes of their original petition, their applications be automatically converted to the new appropriate category for adults; and enables such aliens to retain the priority date assigned to their original petition.”
While De Osorio and Costelo both involved family-based immigrant petitions, the Ninth Circuit stated that the priority date retention clause applies to “F2A petitions, which are for children of permanent residents; and to all other categories of visas for which a child may be a derivative beneficiary (family, employment, and diversity-based visa petitions). “
There are several visa petitions wherein children (under 21) become “derivative beneficiaries” of a petition. There are 5 family-based preference petitions, 4 employment-based preference petitions (there is no wait time for an EB1) and diversity-based visa petitions. Family-based petitions include F1 – Unmarried Sons and Daughters of US Citizens; F2A – Spouses and Children of Permanent Residents; F2B – Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents; F3 – Married Sons and Daughters of US Citizens; F4 – Brothers and Sisters of Adult US Citizens. Employment-based petitions include EB1 – Priority Workers (no wait time); EB2 – Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability; EB3 – Skilled Workers, Professionals, and Other Workers; EB4 – Certain Special Immigrants; and EB5 – Employment Creation (for investors in a targeted rural or high-unemployment area, and for investors in regional centers). Diversity-based visa petitions are for nationals of countries with low admissions during the previous five years.
What is a “priority date” and why is it important? The priority date is the date when a petition is filed on behalf of an alien family member, or in the case of most employment-based petitions, the date when a labor certification is filed on behalf of an alien worker. The alien for whom a petition is filed is called the primary beneficiary, and his spouse and minor children (defined as being under 21 years old) are “derivative beneficiaries.” By definition, there is no spouse or child derivative beneficiaries in an F2A petition; and no spouse derivative beneficiary in an F2B petition. The priority date determines the beneficiary’s place in the line and the wait time in his visa category.
So, Abel who was 5 years old in 1990, and who was listed as a derivative beneficiary in the petition of his grandparents for his parents (F3) in 1990, but who was over 21 years old when immigrant visas were issued to his parents in 2008 – because of processing delays and long wait times for visas, can now have a petition filed for him by his parents, either as an F2B (if still single) or F3 (if now married), and retain the 1990 priority date of his parents’ original petition.
Similarly, according to the cases of De Osorio and Costelo, Rizza, who was a minor and listed as a derivative beneficiary of his father when he was petitioned as an EB3 worker in 2005 but who was over 21 years old when visas became available in 2011, can now be petitioned by her father as an F2B and retain the original priority date of his father’s employment-based petition.
To find out if you are covered by, and how you can avail of the benefits of the Ninth Circuit ruling in De Osorio and Costelo, especially if your case has been previously denied, consult an experienced immigration attorney.
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Atty. Aurora Vega is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, Sacramento, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding its regular free legal clinic at the Max’s Restaurant in Vallejo, California on September 27, 2010. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; [email protected].
