• Supreme Court Narrowly Interprets Priority Date Retention Provisions for Family-Based Petitions
  • June 18, 2014
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • The U.S. Supreme Court affirmed that only a small class of family-based immigrants may hold onto a priority date after “aging out” by turning 21 years old. This narrow interpretation of the priority date retention provisions of the Child Status Protection Act (CSPA) does not impact derivative beneficiaries of employment-based petitions.

    The CSPA enacted certain accommodations for young derivative beneficiaries of immigrant petitions. These include an “add back” of any time of administrative delays so a child who turns 21 years old is not penalized by a long processing time for petition adjudication; automatic conversion of an immigrant classification - without the need to file a new petition - after the son or daughter turns 21 years of age; and the ability to retain the parent’s priority date following the automatic conversion.

    In the case of Scialabba v. De Osorio, by the time the principal beneficiaries obtained permanent residence, their sons and daughters were well over 21 years old. The parents filed new immigrant petitions on behalf of their sons and daughters and sought to have their own older priority dates transferred to their sons and daughters under the CSPA. The Court held, however, that priority date retention is available only to derivative beneficiaries who downgrade from the F2A classification (for spouses and unmarried minor children of permanent residents) to the F2B classification (for unmarried adult sons and daughters of permanent residents). Other derivative beneficiaries, including employment-based derivatives, may not claim priority date retention.

    For example, Susan, a lawful permanent resident of the U.S., files an immigrant petition in 2010, on behalf of her husband, George, and her stepchild, John. In 2014, George obtains U.S. permanent residence, but John has already aged out and is no longer a derivative beneficiary of his father’s petition. CSPA as upheld by the Supreme Court permits John’s case to be automatically converted to the classification for unmarried adult sons and daughters of permanent residents, and John also retains the 2010 priority date, because John still has a qualifying relationship with Susan. But if Susan was a U.S. citizen who sponsored her brother George and her nephew John, John does not qualify for priority date retention or automatic conversion once he ages out, because a U.S. citizen may not sponsor her nephew for permanent residence.

    What This Means for Employers and Foreign Nationals

    The Court’s decision does not impact derivative beneficiaries of employment-based petitions. Derivative beneficiaries of certain family-based petitions may require sponsorship for permanent residence through a different path, such as from an employer. Foreign nationals may also need sponsorship for non-immigrant status, due to the long wait times for immigrant visa availability.