The Child Status Protection Act was enacted into law in 2002. Its purpose was to allow the children of immigrants who turned 21 while waiting for their visas to be processed to immigrate with their parents in many cases.
The courts have recently dealt with the issue of “automatic conversion”, which would allow the adult children of immigrants to use the same “priority date” as their parents.
“Priority date” refers to how long the green card application has been pending. For instance, if a petition was filed in January of 2001, then January 2001 is the “priority date”. Here is how “automatic conversion” to the child’s parent’s “priority date” would work:
Let’s say Mr. Smith is a U.S. citizen or lawful permanent resident. His sister lives overseas with her husband and a daughter. Mr. Smith is sponsoring his sister (Mrs. Jones), his sister’s husband (Mr. Jones), and his niece (Miss Jones). The niece was under 21 at the time Mr. Smith filed for his sister and her family. However, now that a visa is finally available for her parents, Miss Smith is over 21 years old.
Under the old rule, Miss Smith would not have been able to immigrate with her parents. She would have to wait overseas while her parents petitioned for her in the U.S., which would take several years. Under the old rule, only the spouses and children under 21 could immigrate along with their sponsored relative. Relatives of a sponsored immigrant are referred to as “derivatives.” A “derivative” over age 21 was usually left behind when his or her parents immigrated to the U.S.
Now, under the new rule that was created by court’s decision, Miss Jones can immigrate to the U.S. with her parents because she could be given credit for all the years that she waited with her parents for her green card.
In the recent case of De Osorio v. Mayorkas, the 9th Circuit Court expressed its hope that the U.S. Immigration Service would develop a procedure to deal with the “automatic conversion” of child immigrants who turn 21, so that these children may share in their parents’ “priority date” and immigrate with their parents. This would ensure that children are not penalized for the Immigration Service’s slow processing times. However, the Immigration Service may decide instead to appeal the De Osorio decision to the U.S. Supreme Court, which would delay any implementation of the automatic conversion for as long as it would take the U.S. Supreme Court to make its decision.
The U.S. Supreme Court does not accept for consideration all the cases that are appealed to it. It can select the cases it wishes to decide. Also, there is only a limited time in which the Immigration Service can petition the U.S. Supreme Court to hear its appeal of the De Osorio case, and others like it from other jurisdictions. With luck, the U.S. Supreme Court will decline to hear the Immigration Service’s appeal, or the Immigration Service will not appeal at all. In either of these scenarios, the Immigration Service will be obligated to develop a process in a timely manner to implement the “automatic conversation” of “priority dates” so that recent immigrants to the U.S. may finally be reunited with their children.
About the author: Kathleen Lord-Black is a U.S. Immigration Lawyer. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, past SEIU Union Rep, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada). www.immigration-etats-unis.com
