Court ruling could benefit children of legal residents

The Court of Appeals for the Ninth Circuit today ruled that federal immigration law gives priority to children of legal residents who became adults while waiting years for a visa.

This ruling is not final, but if upheld, it could change the situation for thousands of children of legal residents.

For years, immigration law stipulated that minor children of immigrants applying for residency would be excluded from their parents' visa priority date if they reached the age of 21 while awaiting the resolution of the process.

Because the United States issues a limited number of family-sponsored immigrant visas each year and because of serious delays in processing the cases, sometimes the children included in the application turned 21 during the wait.

Basically, at age 21 the children had to start a new application. In doing so, they obtained priority dates for visas much later than their parents.

Recognizing the problem of backlogs in the processing of family petitions, in 2002 Congress passed the Child Status Protection Act (CSPA). A section of that law allows some petitioners who have reached the age of 21 during family petition processing to retain the original priority date issued after receipt of the original petition. This would mean that children would maintain the same priority as their parents to obtain the visa.

However, when the U.S. Citizenship and Immigration Services (USCIS) and the Board of Immigration Appeals rejected this clause as justification for allowing youth over the age of 21 to keep their parents' priority date, a group filed a class action lawsuit against the government agencies.

After analyzing the case, the Ninth Circuit Court, based in San Francisco, today determined that the Child Status Protection Act provision effectively authorizes automatic conversion and retention of the priority date for children of visa beneficiaries who have reached the age of 21 during the waiting period.

The importance of this ruling is that it will set precedent for other lawsuits and for authorizing the withholding of priority dates for children of immigrants included in family-based petitions, regardless of whether they turn 21 during the visa wait.

But unfortunately, for the time being, this decision is only valid for states that are within the jurisdiction of the Ninth Circuit. These are: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

There is a possibility that the Ninth Circuit Court's decision will be appealed, taking the case to the U.S. Supreme Court. If so, the U.S. Supreme Court ruling would become federal law for the entire country.