Child who lost eligibility under derivative visa is now eligible because he may use filing date of visa petition for which he was originally listed.

Thursday September 27, 2012

Immigration:Child who lost eligibility under derivative visa is now eligible because he may use filing date of visa petition for which he was originally listed. 


Cuellar de Osorio V. Mayorka, U.S. Court of Appeals-Ninth Circuit, No. 09-56786, Sept. 26, 2012

    In May 1998, Rosalina Cuellar de Osorio's U.S. citizen mother filed an F3 Visa petition on Cuellar's behalf. Cuellar's son, who was 13 years-old at the time, was listed on the petition as a derivative beneficiary. By the time Cuellar received her visa in November 2005, her son was already 21 years-old, and was no longer eligible for a derivative visa. When she became a lawful permanent resident (LPR), Cuellar immediately filed an F2B petition on behalf of her son. In doing so, she sought to keep the May 1998 priority date of her original F3 petition under the Child Status Protection Act (CSPA). The United States Citizen and Immigration Services (USCIS) denied Cuellar's request to keep May 1998 as the priority date, noting that the CSPA did not apply to all derivative beneficiaries. Later, the district court granted summary judgement in favor of USCIS.
    Reversed and remanded, Under the CSPA, beneficiaries of derivative visa applications, who have turned 21 before their parents were able to adjust their status, may automatically retain the priority date of the original petitions for which they were named beneficiaries. Thus, this court determined that the CSPA extended the priority date retention and automatic conversion benefits to aged-out derivative beneficiaries. Thus, this court determined that the CSPA extended priority date retention and automatic conversion benefits to aged-out derivative beneficiaries of all family visa petitions, such as Cuellar's son. Given that Cuellar's son was an aged-out derivative beneficiary, who could convert under an F3 visa applicable to unmarried children of LPRs, he was entitled to retain the May 1998 priority date from the original visa petition filed where he was named a derivative beneficiary. Thus, the district court erred in granting summary judgement in favor of USCIS.
Opinion by judge Mary H. Murguia; Judge Milan D. Smith, Jr., dissenting.
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