IN 1988, Maria, a US citizen, petitioned her brother, Edgar from the Philippines. Although the petition was approved, the priority date was not current. In fact the priority date did not become current until 2011. When it came time for Edgar to process his immigrant visa, his son, who was 2 at the time of the petition, was already 25 years old. He had aged out of the petition and could not come to the United States with his father. Edgar had to leave his son behind. As soon as Edgar obtained his green card, he petitioned for his son. However, he discovered that he would have to wait approximately 10 more years for the priority date to become current for his son to be reunited with him. This is a familiar tragedy for many families that have immigrated to the United States.
The CSPA [Child Status Protection Act] provisions have allowed the retention of priority date for aged-out beneficiaries. However, USCIS have narrowly applied the retention to petitions with the same petitioner. This policy was upheld by the Board of Immigration Appeals. Realistically, a beneficiary would only retain his/her priority date if the petition was filed by the same petitioner. In this scenario, since Maria was the original petitioner for Edgar, the priority date could not be transferred to a subsequent petition from Edgar to his son.
On September 26, 2012, the Ninth Circuit Court of Appeals published an opinion holding that “the plain language of the CSPA unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries.” This significant decision will help out thousands of aged-out children to retain the priority dates of their parents’ original petition and relieve numerous immigrants from prolonged separation.
Under this new ruling, Edgar’s petition for his son would retain the original 1988 priority date. Under the current visa bulletin, the priority date would be current and Edgar could be reunited with his son immediately as oppose to waiting 10 additional years.
At Wilner & O’Reilly, we have helped thousands of immigrants reunite with their families. We have board certified specialist, former immigration officers and proven litigators to fight for you. To inquire more, please feel free to contact us at (562) 207-6789 and schedule your free consultation.
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Richard M. Wilner is a principal in the firm of Wilner & O’Reilly, APLC. He is Board Certified as a Specialist in Immigration and Nationality Law by the State Bar of California’s Bureau of Legal Specialization. He is a former Commissioner for the State Bar’s Immigration and Nationality Law Advisory Commission. Mr. Wilner may be reached directly via email at [email protected] or by telephone at 714-919-8880
