As of September 2012, the 9th U.S. Circuit Court of Appeals ruled “en banc” in a vote of 6-5 that immigration officials must prioritize thousands of green card applicants who “lost their place in line” (figuratively speaking) when they turned 21. It used to be that once you turned 21 after waiting a lifetime for your parents’ visa to become available, you were just out of luck and could not immigrate with your parents. Everyone agreed that punishing people who had been patiently waiting in line to get their turn only to be told “tough luck” was just too callous a treatment, although it still goes on in other federal circuits.
Here in the 9th Circuit, after years of denial, the courts came to the conclusion that U.S. Citizenship and Immigration Services officials had wrongly concluded that many people were ineligible for special visas given to those with a green card. Instead, they made them file new applications, and then filed them at the end of the pile, allowing those who turned 21 during the process to be “aged out.” USCIS in fact made a de facto new law without any authority to do so. Only Congress has that authority. The 9th Circuit finally decided to use the Constitution and exercise the right given to it therein to tell USCIS “how it is going to be.”
“Congress recognized that many beneficiaries were aging out because of large backlogs and long processing times for visa petitions, that is why it came up with CSPA. This law is designed to protect a beneficiary’s immigration classification as a child when he or she ages out due to excessive processing times. CSPA can protect “child” status for family-based immigrants, employment-based immigrants, and some humanitarian program immigrants.”
No one should rush to claim their CSPA right now since DHS has 90 days to appeal. We should expect a positive change for those going through the waiting process starting in early February 2013.
Aime M. Katambwe is a local Valencia Attorney practicing Immigration Law with the WorldEsquire Law Firm. If you have any further questions, please contact him at www.worldesquire.com.