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June 13, 2014
In a heavily divided decision, Scialabba v. Cuellar de Osorio, the U.S. Supreme Court has ruled that thousands of young immigrants who were included on their parents' visa petitions as minors, but turned 21 as their parents waited for their visa numbers to become current, could not be converted into a more appropriate visa category.
The U.S. immigration laws provide for a specific number of permanent resident visas, often known as Green Cards, every year. These Green Cards restricted to different categories, for example, Diversity Visas, Employment Visas, and Family Visas. Additionally, the number of these visas is also restricted based on the applicant's country of birth.
Therefore, when an applicant applies for a permanent resident visa, he or she needs to have a visa number "available" before they can get a green card. If the visa number is not available, the applicant has to sometimes wait for many years before getting a green card, even after his or her petition is approved by the USCIS.
Many of these applicants have children who are below the age of 21 born outside the U.S. The have no immigrant benefit of their own, and are present in the U.S. as dependent of their mother or father. However, once the child turns 21, the dependent visa is no longer valid, and they must usually seek out their own permanent visa and start the process afresh, even if their parents have waited more multiple years for visa number availability.
Therefore, a bipartisan group of present and former members of Congress had submitted an amicus curiae brief to the Court, proposing an interpretation of the Child Status Protection Act (CSPA), which would allow the minors to convert to an immigrant petition under a different category. The amicus proposed that the law was intended to reunite families, not extend their separation.
The Court, however, rejected this interpretation. All justices agreed that the CSPA compensates an aged-out child by automatically converting his parent’s original visa petition to the appropriate category for him and by allowing him to retain the “priority date” of the original visa petition. However, a majority of the 5-4 decision rejected CSPA's application to all age-out children. It restricts the application to children who originally fell within the category of children of lawful permanent residents. These young adults now will likely be separated from family members for years—and in many cases, decades—to come.