In Scialabba v. Cuellar de Osorio, the U.S. Supreme Court ruled that the CSPA does not protect all of the derivative children of family-based immigrant visa applicants equally when they “age-out” of derivative status upon turning 21. Instead, the only derivative children of family visa applicants who will be able to recapture the priority date of their parent’s I-130 family visa petition if they “age-out” are the derivative beneficiaries under the second preference category for spouses and children of lawful permanent residents (category “F2A”). Therefore, derivative children of applicants under the other categories – such as children of adult sons and daughters or of siblings of U.S. citizens – will not be able to recapture their parent’s priority date. Therefore, they will have to start the process again as principal beneficiaries of a newly filed I-130 petition with a new priority date.
In this podcast, we will explain what this means by going through an example of how the Supreme Court’s ruling in Scialabba affects the “aged-out” child of a woman from Mexico whose priority date to immigrate as the sibling of a U.S. citizen has just become current.
For more details on Scialabba v. Cuellar de Osorio, please download the Recapturing Priority Dates after Scialabba Practice Advisory.