The wait time for immigrant petitions to become “current” under most family based preference categories often takes a long time. During this long waiting period, it is common for derivative beneficiaries to end up aging out and unable to obtain their green cards along with the principal beneficiary (the parents). Aging out occurs when the derivative child of the principal beneficiary turns 21 years of age, even after applying the analysis under the provisions of the CSPA (Child Status Protection Act), by the time the primary beneficiary obtain their legal permanent residency.
Petitions that encounter this type of problem include petitions for unmarried sons and daughters of US Citizens (F1), Unmarried sons and daughters (21 years of age or older of permanent residents (F2B), Married Sons and daughters of US Citizens (F3), and Brothers and Sisters of adult US Citizens (F4).
A recent Ninth Circuit case has made it possible for these aged out derivative beneficiaries of these preference petitions to retain the priority date of the original petition in a subsequent petition by their parents by interpreting a provision of the CSPA. Under De Osorio v. Mayorkas, the ninth circuit interpreted the Child Status Protection Act (CSPA) provision, governing rules for determining whether aliens are children, as permiting both aged-out beneficiaries of visa petitions for children of legal permanent residents (LPRs) and aged-out derivative visa beneficiaries of the other family visa categories to automatically convert to a new appropriate category if one is available, and the visa applicants may retain the priority date of the original petitions for which they were named beneficiaries. Child Status Protection Act, § 3(h)(3), 8 U.S.C.A. § 1153(h)(3). De Osorio v. Mayorkas, 695 F.3d 1003.
As a result of this decision, legal permanent residents (LPRs) who had filed visa petitions on their children’s behalf and derivative beneficiary children of all family-sponsored visa petitions were entitled to automatic conversion of petitions to adult categories upon “aging-out” of visa eligibility and were also entitled to retain priority date of original visa petitions for which they were named beneficiaries as children under age 21, even though automatic conversion and priority date retention benefits required change in petitioner’s identity, under Child Status Protection Act (CSPA), Immigration and Nationality Act, § 101(b)(1), 8 U.S.C.A. § 1101(b)(1); Child Status Protection Act, § 3(d), (h)(1–3), 8 U.S.C.A. § 1153(d), (h)(1–3).
If you obtained your green card under any of these preference categories and have a derivative child that aged out, you may be able petition your aged out child and retain the priority date of your original petition, trimming years of wait time from the new petition, and allowing your aged out derivative child to obtain their green card.
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Attorney Kenneth Ursua Reyes was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail [email protected]; Website kenreyeslaw.com.
