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'Aged Out' Immigrants Must Start Visa Process Over: Supreme Court

By Brett Snider, Esq. on June 10, 2014 | Last updated on March 21, 2019

The U.S. Supreme Court has ruled that foreign-born young relatives of American citizens and legal immigrants need to start the visa process over if they "age out" while waiting for a visa.

Currently the law allows extended relatives (such as nieces, nephews, and grandchildren) of legal U.S. residents to "piggyback" on their parents' visa applications until they reach 21 and "age out." The Supreme Court was asked to interpret whether U.S. immigration law intended to keep extended families together, which it denied, reports Reuters.

Why did the High Court come down hard on immigrants in this case?

Visas for Derivative Beneficiaries

The Immigration and Nationality Act allows U.S. citizens and those with green cards to petition for family members to obtain immigrant visas. This can include children or siblings of the legal permanent resident, known as principal beneficiaries, as well as their children and spouses, known as derivative beneficiaries.

Scialabba v. de Osorio focused on what happens to derivative beneficiaries, specifically young nieces, nephews, and grandchildren who are waiting in line to apply for visas and "age out" before they reach the front of the line. According to the U.S Citizenship and Immigration Services, the Child Status Protection Act (CSPA) allows for the time the visa petition was pending to be subtracted from the "aged out" derivative petitioner's biological age.

CSPA also amended the law to allow an "aged out" child's petition to "automatically be converted to the appropriate category." The de Osorios were principal beneficiaries who became legal permanent residents, who then petitioned for their "aged out" children to obtain visas. The Supreme Court was called upon to determine how this "automatic conversion" related to the de Osorio children's place in the visa line.

Automatic Conversion Is Limited

A liberal reading of CSPA's "automatic conversion" clause would imply that "aged out" children would not lose their place in line, regardless of whether they were principal or derivative beneficiaries. That would mean children of legal permanent residents, as well as their grandchildren, nieces, and nephews, would essentially be given the same saved spot despite "aging out."

Putting it briefly, the Supreme Court took a more conservative stance. Stating that the statute was ambiguous, it gave deference to the Board of Immigration Appeals, which interpreted the law as giving no saved spot in line to "aged out" nieces, nephews, and grandchildren.

These "aged out" children may still be eligible to file for a visa, but they can't skip ahead in line -- one that isn't getting shorter anytime soon.

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