Supreme Court Explains the “Age Out” Provision for Family Preference Visas


June 13, 2014

Scialabba v. Cuellar de Osorio

(Case summary)

This case addresses whether an alien who reaches the age of 21 prior to his or her parent obtaining approval for a lawful permanent resident visa under the family preference categories may be immediately granted an visa under a different family-preference visa category, or must wait an additional amount of time for a visa to become available in that other category. The Supreme Court held the alien must wait.

Background on Family Preference Visas

One way to obtain admittance as a lawful permanent resident is through the family-preference visa system (hereinafter “F” followed by the corresponding category, such as “F-2A”). See 8 U.S.C. § 1153(a)(INA § 203(a)). Under that system, citizens and lawfully permanent aliens in the United States can petition for certain relatives to be admitted to the United States. Under that system, there is a numerical limit to the number of visas that are allocated each year.[1]

Under the numerically capped family-preference visa system, there are four distinct categories. See 8 U.S.C. § 1153(a)(1)-(4) (INA § 203(a)(1)-(4)). The first category is for the unmarried sons and daughters of citizens (hereinafter “F-1”). The second category has two subparts: INA § 203(a)(2)(A), is for spouses and minor children of LPRs (hereinafter “F-2A”); INA § 203(a)(2)(B) is for adult unmarried sons and unmarried daughters of LPRs (hereinafter “F-2B”). The third category, INA § 203(a)(3), is for the married sons and daughters of citizens (hereinafter “F-3”). And the fourth category, INA § 203(a)(4) is for brothers and sisters of citizens (hereinafter “F-4”). Additionally, a spouse and/or minor children of immigrants who receive a green card through these categories can also obtain a green card, through what is commonly called a “derivative” visa. INA § 203(d).

To gain admittance to the United States as an LPR through the family preference system, there are three potential wait times for having a visa approved. The first is awaiting the petition to be approved after the sponsor has filed the petition.[2] The second is for a visa to become available. The third is for the visa application to actually be approved. See Scialabba v. Cuellar de Osorio, Slip Op. (discussing the wait times). The intermediary wait time for a visa to become available is usually the longest. It can often take years or decades for a visa to become available due to the numerical caps. Id. As a result, it is possible that during the time to obtain a visa, minor children can reach adulthood. That was exactly what happened in Scialbabba where the plaintiffs were minor children attempting to enter as derivatives of their parents when the petitions were originally filed.

The Immigration Age-Out Rules and Priority Dates for Family Preference Petitions

In Scialabba, the plaintiffs were all F-3 and F-4 derivative children who had “aged out,” meaning they were no longer “children” under the immigration laws because they had turned 21 prior to their parents’ visas being approved. Because the plaintiffs were all now 21 years of age or older, they could no longer be admitted as a child “derivative” under the INA. See INA § 101(b)(1); § 203(d). Instead, these aliens were adult unmarried children and thus could only enter the United States under the F-2B category upon a petition filed by their parents, who were admitted to the United States and became LPRs. The question for the court was how long the plaintiffs must wait before they could obtain F-2B visas.

The plaintiffs argued that they should get to “count” all of the time they waited for an F-4 derivative visa toward their wait time for an F-2B visa. The government argued that since the aliens are not eligible for an F-4 visa and instead eligible for an F-2B visa, the aliens must wait at the back of the “line” for such a visa to become available. If the plaintiffs could count the time they spent waiting for an F-4 derivative visa, , the plaintiffs could be admitted to the United States almost immediately and ahead of all of the other F-2B aliens. If not, they must wait until an F-2B visa was available for them, behind all of the other aliens who had been waiting for F-2B visas.

The Supreme Court’s analysis was based on the statutory interpretation of federal law and deference to an earlier interpretation of that law by the Board of Immigration Appeals (“BIA”). In 2002, Congress addressed the issue of “aging out” for certain aliens in CITE LAW. Under that law, Congress drafted two different age-out rules. The first one, for aliens who are children of citizens—i.e. “immediate relatives” and thus not subject to numerical caps—provides that a “child’s” age is simply the date when the petition for he or she is filed by the parent. 8 U.S.C. § 1151(f)(1) (INA § 201(f)(1)). Thus, if a “child” of a citizen is 20 years and 364 days when the parent files the petition, even if the “child” is not admitted until he or she turns 22, the alien is still a “child” for purposes of immigration law and can obtain a visa as an “immediate relative.” If not for that statute, the alien would be an unmarried son or daughter of a United States citizen and be subject to numerical caps as an F-1 under INA § 203(a)(1).

The second age-out rule applies to family preference visas and is found at INA § 203(h). It has three parts. First, under 1153(h)(1)(A), the statute describes how to calculate whether any alien is a “child” when seeking admittance as a derivative beneficiary.[3] Under the statute, one takes the age of the derivative minor alien “on the date on which an immigrant visa number comes available” for the parent… ” and reduces that number by “the number of days in the period during which [the visa petition for the derivative’s parent] was pending.” INA § 203(h)(1)(B). These two sections together mean that only “bureaucratic delays” are deducted from the alien’s age—i.e. the first and last times in the visa process described above, when the petition application is “pending” and when the visa “become[s] available.” Scialabba, Slip Op. at 9. However, according toScialabba, the time that the derivative alien is waiting for a visa to become available for his or her parent—the intermediary and usually the most lengthy time—is not subtracted from the alien’s age. Id. Thus, if a derivative is 18 years and zero months old when a petition is filed, and it then takes six months from that date for the petition to be processed, two years and 11 months for a visa to become available, and then three months for the visa to be approved, the derivative’s age is calculated to be 20 years and 11 months (one subtracts the nine months of bureaucratic delays but not the intermediate two years and 11 months waiting for the visa to become available). Thus, under that scenario, the alien still can enter the United States as the minor derivative of his or her parent, even though the alien is actually over 21 years of age. In Scialabba, even taking into account the bureaucratic delay rule, all of the plaintiffs were still over the age of 21. Thus, they could only count the original filing date of the petition for their parents if they qualified under INA § 203(h)(3).

INA § 203(h)(3), the statute at issue in Scialabba, permits some derivative aliens[4] who still “age out,” even after taking into account the bureaucratic delays, to nevertheless retain the original petition date (“priority date”) of the petition filed for their parents: If after the bureaucratic delay calculations the alien is still 21 or older, “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.” Id. However, the Supreme Court, agreeing with a prior BIA ruling, held that the plaintiffs could not qualify for the § 203(h)(3) rule. Instead, the Court held that the plaintiffs had to begin counting from the time that their parents, as LPRs, filed a petition for them as adult unmarried children (F-2B).

Holding of Scialbabba v. Cuellar de Osorio

In holding that the plaintiffs could not qualify for relief under 203(h)(3), the Supreme Court focused on the term “automatically be converted” and relied on the BIA’s previous construction of that term. In Matter of Wang, 25 I. & N. Dec. 28 (2009), the BIA looked to the “recognized meaning” of that phrase in the immigration status and regulations and “presume[d]” that Congress intended that same meaning to apply. Id. at 33-35. According to the BIA, that language applied “when a petition could move seamlessly from one family preference category to another—not when a new sponsor was needed to fit a beneficiary into a different category.” Scialabba, Slip. Op. at 11 (construing Wang, 25 I. & N. Dec. at 35). Thus, a petition can only “automatically convert,” when a new sponsor does not need to file a new petition for the alien. It is not an automatic conversion when thepetition must change.

Under this interpretation, no child derivative of an F-3 or F-4 alien can ever benefit from § 203(h)(3) because once the derivative turns 21 (and becomes an adult), the original visa sponsor—a grandparent or an aunt or uncle of the derivative alien—cannot be the sponsor of the alien under US immigration laws. See INA 203(a)(1)-(4). Instead, only the alien’s parent, who is now an LPR, must sponsor the alien, meaning that a new petition must be filed by a new petitioner. Id. at INA 203(a)(2)(B) (F-2B category). In contrast, under an F-2A petition, if the derivative alien “ages out,” the alien can still be admitted to the United States without a new petitioner filing a new petition, but must be admitted as an F-2B instead of an F-2A. The sponsor does not change, just the visa category. Thus, the petition can be “automatically converted” to an F-2B petition without any new petition being filed.[5]

The Plaintiffs offered three arguments to support their interpretation of 203(h)(3). First, Plaintiffs argued that their petitions could be “automatically converted” if the government just “substitut[ed] new sponsors for old one[.]” Slip Op. at 22-23. The Court rejected that argument because it does not meet the ordinary understanding of the term “automatic conversion.” Id. at 23. The Court also rejected that argument because it ignores the text of the statute. The Court held that even if it ignored that problem, the Plaintiffs’ argument because in order to qualify for an F-2B visa, the plaintiffs would need their parent alien living in the United States as an LPR. However, the timing of that is problematic because their parents are not automatically converted into an LPR when a visa becomes available—the language in the statute. The parents only become an LPR after their visa application is adjudicated and they have passed inspection into the United States. Id. at 23-26. Additionally, they must still be able to prove they have the ability to sponsor their children before they can become a sponsor. Id. at 26.

The second argument advanced by the plaintiffs was that the 203(h)(3) could be read to grant them the benefit of the original priority date “wholly independent of automatic conversion.” Slip Op. at 27. In support of their argument, Plaintiffs argued that the word “and” meant that the second phrase regarding priority date was to be read separate from the first phrase regarding automatic conversion. Id. at 27-28. While the Court agreed some sentences can provide for such a reading, this sentence cannot. Id. at 28-30.

The final argument made by plaintiffs was that “the BIA acted unreasonably in choosing the more restrictive meaning” of the statute because “the Board ha[d] offered no valid reason…to treat their own sons and daughters less favorably than aliens who were principal and derivative beneficiaries of F-2A petitions.” Id. at 31. The Court rejected argument for numerous reasons. The BIA’s interpretation is more straightforward and less burdensome. Id. And, the BIA’s interpretation focuses on the relationship between the sponsor and the beneficiary alien. Under an “automatic conversion,” the aged out beneficiary alien had the same qualifying relationship with an LPR for the entire time they waited in line—meaning, “when immigration authorities convert their petitions, they will enter the F2B line at the same place as others who have had a comparable relationship for an equal time.” Id. at 32. If the aged out F-3 and F-4 aliens in this case were able to keep their original priority date, they would “jump over thousands of others in the F2B line who had a qualifying relationship with an LPR for a far longer time. That displacement would, the Board reasonably found, scramble the priority order Congress prescribed.” Id.

This case is basically one of following agency deference and statutory construction. The Supreme Court held that the BIA reasonably construed the statute and that the Ninth Circuit erred in overturning the BIA’s construction. Following this opinion, only the following categories of individuals can benefit from the family-sponsor age-out rule:

–Children of LPRs (F-2A) can “age out” and automatically convert to F-2B (unmarried adult children of LPRs).

–Derivative of an F-2A (filed by an LPR on his spouse’s behalf) can claim relief, if the alien is both the spouse’s and the petitioner’s child. Slip Op. at 31.

A link to the Supreme Court’s opinion can be found here.

[1] There are other aliens who are not subject to numerical restrictions. See 8 U.S.C. § 1151(b) (INA § 201(b)). Included in that group are the minor children and spouses of citizens and the parents of citizens who are over 21 years of age.

[2] The “sponsor” is the relative, either a United States citizen or an LPR living in the United States, that is petitioning for the alien relative to be admitted to the United States.

[3] It also addresses when an individual is a “child” for purposes of an F-2A.

[4] And F-2A aliens in their own right.

[5] The Court also noted the financial undertaking a sponsor is taking on when petitioning for a family member to enter the United States—agreeing to support the alien financially for ten years so that the alien does not become a “public charge.” Slip Op. at 5-6, 21.

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