November-December 2012

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RIDING THE CIRCUITS by Shoba Sivaprasad Wadhia CA9 Upholds Law, Limits Chevron Deference for 'Aging-Out' Children application should be able to retain their space in line even if they turn 21 before the immigrant visa is issued. The issue in De Osorio v. Mayorkas, No. 09-56786, (9th T he U.S. Ninth Circuit Court of Appeals recently held that children who are under the age of 21 when they are listed as a "derivative" on a permanent residence Cir. Sept. 26, 2012), is whether children who are named on visa petitions filed on behalf of their parents should remain eligible to apply for a visa a┼┐ter "aging out," or turning 21, before the visa becomes available. The im- plications of De Osorio are significant, as it enables adult children to receive a permanent resident card in a more predictable and shorter timeframe than would be the case if they were required to begin the immigrant visa process anew upon turning age 21. The Family Immigration Cap and Chevron Congress designed the complex family immigration sys- tem that is capped at 480,000 visas annually. Those deemed "immediate relatives" (spouses, children, parents of U.S. citizens) are not subject to this or any other quota. But the other family categories (unmarried adult children of U.S. citizens, spouses and children under the age of 21 of green card holders, etc.) are subject to specific quotas within the 480,000 limit. When a petition is filed by a sponsor for a qualifying relative, the filing date is labeled as a "priority date, agency to measure the wait time for a particular petition to reach the front of the quota line. These congressionally cre- ated quotas, coupled with agency processing delays, create a paradigm where children listed as "derivatives" on their parents' immigrant visa petitions can turn 21 before their priority date becomes "current" and a visa becomes avail- able. When children reach the age of 21, they no longer qualify as dependents of their parents on an immigrant visa petition. Adult-age children require an independent visa petition to immigrate to the United States. The Ninth Circuit illustrated the problem as follows: " which becomes the benchmark that is used by the 12 VOICE LEARN MORE ABOUT CSPA AILA's Focus on the Child Status Protection Act Purchase > Look for an updated practice advisory on CSPA from the American Immigration Council's Legal Action Center in January 2013. For example, U.S. citizen Adele files a [visa] peti- tion on behalf of her adult son, Aron, and includes Aron's daughter, Naira, as a derivative beneficiary. By the time Aron receives a visa, Naira is over 21. Adele can no longer petition on Naira's behalf, as there is no qualifying relationship between a grandmother and her adult granddaughter. Once Aron becomes a [law- ful permanent resident], Aron may file a [new visa] petition [in a different visa category] for his daugh- ter, Naira. Similarly, U.S. citizen Adele files a [visa] petition for her sister, Kristen, and includes Kristen's daughter, Sandy, as a derivative beneficiary. If Sandy is over 21 when Kristen receives her visa, Adele cannot petition for Sandy, because Adele cannot petition for her adult niece. Kristen may file a [new visa] petition [in a different visa category] for her daughter, San- dy. The question here is whether the original [visa] petition[s] should be automatically converted to [the new visa petitions], and if the [new visa] petition[s] retain the priority date of the [original] petitions. petitions filed by family members on behalf of their par- ents, Congress enacted the Child Status Protection Act (CSPA) in 2001. Among other things, the CSPA enables certain noncitizens who were children when they were To remedy the problem of children "aging out" of visa

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