SUPREME COURT RULES ONLY AGED – OUT CHILDREN OF GREEN CARD HOLDERS (F-2A) CAN RETAIN ORIGINAL PRIORITY DATE

By Michael J. Gurfinkel, ESQ.

In a long – awaited decision, the US Supreme Court ruled that the only aged-out children who can retain their original priority date under the Child Status Protection Act (CSPA) are those who were originally petitioned by a lawful permanent resident (LPR) parent in the F-2A category (minor child of LPR), either:

1. As a direct beneficiary, (where the LPR parent directly petitioned that minor child); or 2. As a derivative beneficiary, where a green-card holder petitioned a spouse, and their minor child was included under that same F – 2A petition, and later aged –out.

All other derivative beneficiary children who aged out are NOT able to retain/convert/transfer the original priority date on their parent’s petition. This means that aged out derivative children in the following categories will not be able to retain/convert the original priority date of their parent’s petition, which was filed either by the child’s grandparent or uncle or aunt:
1. F – 1 (adult child of US citizen)
2. F-2B (single adult child of LPR)
3. F-3 (married child of US citizen)
4. F-4 (brother or sister of US citizen)
Instead, the parent will have to come forward and file a brand – new petition in the F-2B category (once the parent gets a green card), and the child will get a brand – new priority date based on when the parent files the new petition.

By way of background, the CSPA provided protection for certain children who aged out while waiting for the priority date on their (or their parent’s) petition to become current. Basically, you take the child’s age on the date when the priority date becomes current (or visa becomes available) and subtract from the child’s age the length of time it took the USCIS to process and approve the underlying petition. If the child’s age is calculated to be under 21 (and the child sought to acquire a visa within one year), then the child is included under the original petition as a minor, even though he or she is now over 21.

Another provision of the CSPA, which was the one at issue with the Supreme Court, states that if, after performing the mathematical computation, the child’s age is considered to be over 21, then “the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.” It was argued that children who were petitioned in the F-2A category, as well as all other derivative beneficiaries of the other preference categories, should automatically retain their parent’s original priority date on a newly filed F-2B petition.

Unfortunately, the Supreme Court accepted the BIA’s interpretation of this statute, which limited its application to only unmarried children who had a “qualifying relationship” with an LPR parent both before and after the child aged out. The BIA (and the Supreme Court) focused on the language in the statute concerning “automatic conversion”, which they interpreted to mean “when a petition could move seamlessly from one family preference category to another.” The conversion is merely moving the same petition from one category to another, where the petitioner/sponsor, and the petition itself, remain the same throughout.

In the other family categories, there is no direct relationship between the original petitioner (grandparent, aunt\uncle) and the aged out child. Instead, the parent would have to come forward and file a new petition. Therefore, the other family categories require a new petitioner and new petition, which is not an “automatic” conversion of the same petition by the same petitioner.

The US Supreme Court also believed it would be unfair to other aged-out beneficiaries already in line in the F-2B category, because if automatic conversion were allowed (and the aged out child of the other preference categories could retain their parent’s original priority date) they could “cut in front of the line”. Right now they are processing F-2B petitions filed in 2003. However, petitions by brothers and sisters of US citizens are being processed with priority dates in 1990. If an aged-out derivative child of an F-4 petition can retain the 1990 priority date, that child will be able to go in front of the F – 2B beneficiary who is already in line (with the 2003 priority date).

I know this was not the decision or outcome we had all been hoping for. Aged – out children in the other family categories will now need their parents to file new F –2B petitions, and the child will receive a brand-new priority date. However, make sure your math was correct, as perhaps the child’s age was could have been calculated to be under 21, in which case they would not need to rely on that automatic conversion provision of the CSPA.

Also, if you were originally an F-2A beneficiary and aged out, at least you could retain that same priority date in the F-2B category.

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