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NPZ Immigration Law Blog

Wednesday, June 18, 2014

U.S. SUPREME COURT DELIVERS BAD NEWS TO MANY FAMILIES IN CASE THAT LENGTHENS THE CUE FOR AGED-OUT CHILDREN

In Scialabba v. Cuellar de Osorio, a heavily-divided U.S. 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. In the case, the majority ruled despite having waited his turn in line, the mere fact that the child aged-out means that his time was lost and the case could not be converted into a more appropriate visa category.

Under the Supreme 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 a common-sense approach to the Child Status Protection Act (CSPA). The irony is that the advice of 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, was not followed. The nine justices issued four opinions in the case. All agreed that the CSPA compensates an aged-out child by automatically converting a parent's original visa petition to the appropriate category and by allowing an individual 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 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 sound solution . . . 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, Justice Alito 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. Of course, this Court decision means that the President will have the even harder decision of whether or not to take some form of administrative action.

For additional information about the CSPA or Aging-Out or about what to do to advance cases of those whose cases are taking a long time, please feel free to contact the U.S. immigration and nationality lawyers and attorneys at the NPZ Law Group at info@visaserve.com or by calling them at 201-670-0006 (x107). Our offices in Ridgewood, NJ, Princeton, NJ, Midtown Manhattan, and our affiliated offices in Gujarat and Mumbai, India, re pleased to assist you with any and all of your business and personal Canadian and U.S. immigration law needs.

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