On September 26, a divided U.S. Court of Appeals for the Ninth Circuit held that U.S. Citizenship and Immigration Services (USCIS) erred in denying the children of foreign nationals with pending adjustment of status applications an opportunity to retain their priority dates when they “age out,” or turn 21 years old. Specifically, the court ruled that USCIS must give priority status to the thousands of adjustment of status applicants who lost their place in line for U.S. permanent residency when they reached the age of 21 and were no longer eligible to adjust their status as derivative beneficiaries of their parents’ applications.
The court based its ruling on the text and legislative intent of the Child Status Protection Act, holding that the statute intended to preserve the original application date of a minor who turned 21 years old while his/her parent’s application was pending. The court also stated that the USCIS wrongly required such applicants to file new permanent residency applications, placing them at the end of the queue, and held that immigration officials must now look at the original priority date when processing an application for permanent residency.
The ruling reverses the decision of a trial court judge who did not permit a class action lawsuit filed by U.S. legal permanent residents whose children had “aged out” of the derivative permanent residency application process upon reaching 21 years of age.