In June of 2014, the U.S. Supreme Court issued an opinion agreeing with the Board of Immigration Appeals’ stance on the Child Status Protection Act (CSPA).
In Scialabba v. Vuellar de Osario, a divided Court found that the benefits of this Act -- namely to protect children from "aging out" and losing visa eligibility when they turn 21 -- applies only to the children of permanent residents who filed visa petitions on their behalf, making the children "principal beneficiaries." It does not apply to "derivatives beneficiaries," or children of the person named on the visa petition.
Immigrant advocates argue that the ruling will make it even more difficult for immigrant children who are waiting their turn in line in order to legally obtain permanent residence in the United States.
The CSPA is a complicated piece of immigration law. For an in-depth analysis, see Nolo’s article “How the CSPA Helps Family-Based Preference Relatives and Derivative Beneficiaries.”
The State Department’s Visa Bulletin shows the current priority dates for immigrant visa applicants, from which one can gauge how long visa applicants in various categories must wait before applying for a green card. The CSPA applies to citizens and permanent residents seeking green cards for their unmarried children under age 21. Prior to the enactment of the CSPA, many children with pending immigrant visa petitions “aged out” of the F2B visa category and dropped down to the F3 category, which due to high demand, has longer wait times.
The question before the Supreme Court was whether all aged-out children in any visa category can benefit from the CSPA. Here, the Court found that certain child derivatives on green card applications can age out despite the protections of the CSPA.
For example, if Maria, a U.S. citizen, files a petition for her brother, Pedro, to join her in the U.S., they will have to wait over a decade for a visa to become available for her brother and his family in the F4 visa category. Pedro can include his spouse and any unmarried children under age 21 on his application to receive derivative visas based on his status. If at the time of filing, Pedro has a ten-year-old daughter, Helena, it is unlikely that she still will be under age 21 when a visa becomes available.
In this instance, Helena will be out of luck. She will lose her eligibility as a derivative on Pedro’s application when she turns 21. Once Pedro receives his green card, he can file a new green card application for Helena and she will be placed in the F2B visa category (with a current wait time of seven years or more).
Immigrant advocates argued that Helena should at least be able to get credit for the time she waited in line as a derivative beneficiary in the F4 category. Unfortunately, the Court decided that when derivative children age out, they do not retain their priority date from previous immigrant visa applications.
Given the current legislative inaction on how to handle the influx of undocumented child immigrants to the U.S., it will be interesting to see whether Congress acts to assist child immigrants who are seeking a legal pathway to the United States.