This week, the U.S. Supreme Court issued a 5-4 decision in upholding the Board of Immigration Appeals’ restrictive interpretation of the Child Status Protection Act (CSPA). In Scialabba v. Vuellar de Osario, the Court addressed the issue involving immigrant (permanent) petitions on behalf of individuals with dependent children who age out – that is, turn 21 – during the pendency of the petition.
U.S. immigration law allows citizens and lawful U.S. permanent residents to file petitions for immigrant (permanent) visas for qualifying family members, such as spouses, siblings, and children of varying ages – from minors to adults. The individual being sponsored is referred to as a principal beneficiary of the petition; the principal’s spouse, minor child or children (an unmarried child under 21 years of age) are referenced as derivative beneficiaries. Generally, derivative beneficiaries are entitled to have the same immigrant status, in the same order as that granted to the primary beneficiary. The CSPA provides several provisions to protect minor derivative beneficiaries from losing their eligibility for immigrant status as they age while waiting for available visa numbers. This Act enables the freezing of a derivative’s age below 21; converting a petition from one category to another without the need to file a new petition, and the retention of one’s priority date – a place in line for permanent residence – assigned to the initial petition of which the aged-out child was unable to take advantage.
In Scialabba, the Court analyzed a scenario where the derivative beneficiaries turned 21 and thus aged out well before the principal beneficiaries became permanent residents as a result of immigrant petitions filed on their behalf. The foreign nationals argued that the CSPA allowed all minor derivative beneficiaries who age out prior to the time the principal beneficiary’s becoming a permanent resident to take advantage of the priority date assigned to the initial petition. The Court adopted the Board of Immigration Appeals’ restrictive interpretation that the CSPA allows priority date retention only to derivative beneficiaries who, due to aging out, are moved from the family-based category for spouses and unmarried minor children of permanent residents to another family-based category for unmarried adult sons and daughters of permanent residents. Other derivative beneficiaries, including those in employment-based immigrant petitions, cannot take advantage of priority date retention.
Importantly, this does not affect the other ways in which CSPA offers protections for derivative beneficiaries, particularly in cases of employment-based immigrant petitions. Specifically, the derivative children in cases of employment-based petitions will still be able to take advantage of the freezing of their age to remain the same as at the time of the filing of the petition, thus preventing aging out, where the applicable requirements of the CSPA are otherwise satisfied. As such, this decision does not impact CSPA’s application to employment-based petitions. Please contact your Greenberg Traurig attorney to find out whether the Supreme Court decision in Scialabba v. Vuellar de Osario has affected your ability to obtain permanent residence.