The San Francisco-based U.S. 9th Circuit Court of Appeals recently reversed earlier court rulings by deciding that permanent resident applicants will no longer need to restart the waiting process if they turn 21 while awaiting a derivative green card. The ruling was made in a 6-5 decision and will likely affect tens of thousands of green card applicants who are on the cusp of turning 21. The decision will affect those who were under the age of 21 when arriving in the US and those who are being sponsored by a parent.
The legal battle has lasted ten years but advocates say that the ruling will ensure that families are kept together and will not have to wait longer for a visa simply because an applicant has turned 21. Previously, derivative visas were available to unmarried children under 21 as well as spouses but in many cases the visa process lasted years. Previously, the courts had deemed that if during the process the unmarried children turned 21 they would no longer qualify for the green card, as it was reserved for unmarried children under the age of 21 specifically. Applicants who “aged out” had to start all over again with green card applications and the time they waited for the derivative visa no longer applied to the wait times for their new green card application.
Attorneys successfully argued that it was not the children’s fault if the visa process took so long that they reached their 21st birthday before a visa number became available. Attorneys were successfully able to argue that as long as children applied before their 21st birthday, they could continue to wait for a visa even if they reached the age of 21. The current wait times, according to advocates, virtually guarantee that unmarried sons or daughters of a lawful permanent resident seeking an F2B visa category will age out under previous laws. According to the U.S. State Department, wait times for an F2B category visa application for Mexico residents is approximately 20 years.
In 2002, Congress passed the Child Status Protection Act to address the issue. The Child Status Protection Act stated that a green card application will “automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.” This was intended to ensure that applicants did not age out when they turned 21, but the U.S. Citizenship and Immigration Services claimed in court that the Child Status Protection Act was vague and alleged that the law would make other applicants wait longer.