There have been many cases where the parents got the immigrant visa, but the children became over 21, and therefore, the immigrant visa was denied to them. Some children were lucky and got the immigrant visa with their parents, even after they aged-out, for the reason that they qualified under the Child Status Protection Act (CSPA).

If the left out child did not qualify under the CSPA, the parents, after immigrating to the U.S., can file I-130 immigrant visa petition on behalf of the child who aged-out. In such cases, a new priority date is given by the U.S. Citizenship & Immigration Services (USCIS), under family-based 2B preference category due to heavy backlog, under which the child has to wait for several years for the visa number to become available and must remain unmarried until the visa is issued or the green card holder parent who filed the petition becomes a U.S. citizen, in which case, the petition can be upgraded to family-based 1st preference category, which is also backlogged.

Other options for the left out child are to obtain the immigrant visa under other Family or Employment categories, for which visa number is immediately available or the waiting time is less.

There have been several court cases where the courts have held that when the new petition is filed for such child, USCIS should give them the old priority date of the parents. USCIS has not made policy decision to implement the court decisions, as of today.

Recently, in the matter of DeOsorio v. Napolitano, U.S. Court of Appeals for the 9th Circuit has held that under the CSPA, the child should be given the old priority date of the petition which was filed on behalf of the parent, under which the unmarried child was also eligible, but was not granted the visa since he aged-out.

We hope that the Obama Administration may follow the Court decisions and make policy decision administratively. However, if that does not happen, the matter goes before the Supreme Court, it may affirm the DeOsorio v. Napolitano decision, which would be applied nationwide. In such case, thousands of left out children who are waiting in line for several years, may get the old priority date of the parent’s case, resulting in processing of their applicant visa speedily.

On September 26, 2012, an en banc panel of the U.S. Court of Appeals for the 9th Circuit ruled, in DeOsorio v. Napolitano, that the “automatic conversion” clause of the CSPA gives credit to sons and daughters of permanent residents who have “aged-out” for the time that they stood in line with their parents under the family-based third and fourth preference categories. Consequently, as long as they remain unmarried, they are permitted to retain their original priority dates and automatically convert to the family-based 2B category.

We find it interesting, even astonishing, that the government continues to argue that Congress, in drafting the CSPA, intended that sons and daughters of permanent residents be given no credit for the years that they stood in line with their parents waiting for their priority dates to become current. Instead, the government insists that, no matter how long they already waited in line, these sons and daughters must go to the back of the 2B line, even though this means a 115-year wait for Mexicans and a 28-year wait for Filipinos. Thus, as a practical matter, the great majority of these sons and daughters will never be reunited with their parents in the U.S.

Is this really what Congress meant when it passed the CSPA?

If existing immigration laws and regulations are relevant, the answer is a resounding no.
When one examines the pre-existing regulatory scheme cited by the Board of Immigration Appeals (BIA) in Matter of Wang, it becomes clear that beneficiaries of visa petitions have always been given credit for the time that they stood in line, even when the line in which they spent years waiting was not the same line in whic