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Monday, June 17, 2024 | Back issues
Courthouse News Service Courthouse News Service

Visa ‘Leapfrogging’ Case Affirmed on Remand

WASHINGTON (CN) - Children who "aged out" of their eligibility for family visas because of processing delays will not get priority for adult visas, the full 9th Circuit ruled, heeding a Supreme Court reversal.

The case at hand stems from F3 and F4 petitions filed for the married children of U.S. citizens, or those citizens' siblings, respectively.

Each of those beneficiaries also had a son or daughter who, on the date of filing the petition, was under 21 and thus qualified as a deriva­tive beneficiary.

Those sons and daughters each turned 21 by the time visas became available, however, even after accounting for age adjustments available under Section 1153(h)(1) of the Immigration and Nationality Act.

When the new legal permanent residents (LPRs) filed F2B petitions - the ones for unmarried, adult sons or daughters - they argued that Section 1153(h)(3) gave their petitions the same priority date as the original F3 and F4 petitions once had.

The office of U.S. Citizenship and Immigration Services instead gave the new F2B petitions current priority dates, meaning that the sons and daugh­ters could not leapfrog over others in the F2B line.A panel with the Board of Immigration Appeals next found that the Child Status Protection Act (CSPA) does not grant a remedy to all aliens who have out­paced the immigration process.

A federal judge in California upheld that determination, and two consolidated cases led by Rosalina Cuellar de Osorio in turn went before the 9th Circuit.

Though a three-judge panel initially affirmed, the en banc court reversed, 6-5, in 2012.

It said "the CSPA unambiguously grants automatic conversion and priority date retention to [all] aged-out derivative benefi­ciaries."

After taking up the case last year, a plurality of the Supreme Court found otherwise this past June, deeming the statutory construction by the immigration appeals board "permissible."

Looking at the case on remand Thursday, the full 9th Circuit affirmed without comment.

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