In the case of Mayorkas v. Cuella de Osorio the Supreme Court is set to decide whether or not Section 1153 (h)(3) of the Immigration and Nationality Act unambiguously grants relief to all undocumented immigrants who qualify as “child” derivative beneficiaries at the time a visa petition is filed but age out of the qualification. The Court will also decide whether the Board of Immigration Appeals reasonably interpreted Section 1153 (h) (3) of the Immigration & Nationality Act.
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The Immigration and Nationality Act allows citizens and lawful permanent residents to obtain visas for family members in order to allow them to immigrate to the U.S. This is usually used in cases where a parent or spouse is working in the U.S. and once he or she is established may decide to bring their family over too. The family member who is being sponsored to come to the U.S. is known as a primary beneficiary. In this case, Section 1153 (h) (3) grants relief to people who reach the age of 21 after filing for a visa. Although individuals are no longer considered children because they “age out” of that status, this section allows their visas not to be voided because the person is no longer a "child." Without this provision, children who have “aged out” would be disqualified from immigration while they were waiting to immigrate. The Circuit Court initially held that even children who “age out” of a family-sponsored immigrant petition may still apply their old priority date to the new petition.
There is considerable speculation as to how the Supreme Court will rule in this case. Many argue that the Board of Immigration Appeals is purposefully engaging in a tortured reading of the statute to find the young people still aged out, thereby disregarding rules of statutory interpretation. Certainly, the appellate court felt that way and ruled that the BIA's decision was contrary to those rules of interpretation. With this Supreme Court, anything is possible especially considering the "strict constructionist" approach used by some of the more conservative judges.
Our office will continue to monitor this case and we stand ready to assist alien children who are about to "age out" on their pending visa applications.
If you have questions regarding the new immigration reform, applying for a visa or the changing immigration laws, contact us at 314-961-8200 or visit our contact page.