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Children of immigrants who 'aged out' of visas can get their place back in line

The now-adult children of immigrant parents who "aged out" of obtaining derivative visas while their parents waited for green cards can get their place back in line, a federal appeals court has ruled.

The decision in the class-action lawsuit against U.S. Citizenship and Immigration Services and other federal officials is a victory for thousands of young people who lost their priority status for family-sponsored visas upon turning 21, as their parents faced long waits due to backlogs in the immigration system. 

When this happens, these former minor children of immigrants are no longer eligible to derive green cards through their parents, and must start over to seek one on their own. 

The lawsuit argued that several plaintiffs were eligible to retain their priority date for receiving a green card under the Child Status Protection Act of 2002. The plaintiffs had been denied this request by the agency and the Board of Immigration Appeals, however, which interpreted the law differently.

The Ninth U.S. Circuit Court of Appeals ruled today that these applicants may keep their priority dates, moving them back toward the front of the line. From the court's published opinion today:

The question before us is whether these children are enti- tled to relief under the Child Status Protection Act (“CSPA”), 8 U.S.C. § 1153(h). The CSPA provides, among other things, that when certain aged-out aliens apply for visas under a new category for adults, they may retain the filing date of the visa petition for which they were listed as derivative beneficiaries when they were children. This ensures that visas are available quickly, rather than requiring the now-adult aliens to wait many more years in a new visa line.

The United States Citizen and Immigration Services (“USCIS”) denied Appellants’ requests for priority date reten- tion under the CSPA. USCIS relied on the Board of Immigra- tion Appeals’ (“BIA”) decision in Matter of Wang, 25 I. & N. Dec. 28 (BIA 2009) that the CSPA does not apply to all deriv- ative beneficiaries. The district court, deferring to the BIA’s interpretation, granted summary judgment to USCIS in two separate cases. We reverse.

We conclude that the plain language of the CSPA unam- biguously grants automatic conversion and priority date reten- tion to aged-out derivative beneficiaries. The BIA’s interpretation of the statute conflicts with the plain language of the CSPA, and it is not entitled to deference.

The entire decision can be read here.