08/01/2014 05:29 pm ET Updated Dec 06, 2017

Immigration Benefits for Sons and Daughters of New Permanent Residents: Another Setback

The U.S. Supreme Court recently restricted the use of the Child Status Protection Act so that certain children who turned 21 before their parent received a green card would have to go to the back of the line and start their wait all over again!


The Child Status Protection Act

Originally passed by the U.S. Congress in 2002, the Child Status Protection Act permits immigrant children to not "age out." That is, they would retain their place on the waiting list for a green card as if they never became adults of 21 years of age or greater during their wait. Since immigrant children younger than 21 years of age can often get the same immigrant benefit as a parent simultaneously or soon thereafter, this anti-age-out law could be the difference between a united family or a shattered family. Adult children who have "aged out" may be vulnerable to being removed from the U.S. or marooned in another country for many years.

The Priority Date System for Regulating the Flow of New Green Cards Explained

When a case is started, by filing either an application with the U.S. Department of Labor (USDOL) or a petition with U.S. Citizenship and Immigration Services (USCIS), the date the case is received by the appropriate government agency is called its priority date. This system allows the government to speed up or slow down the number of green cards issued in any given category based on the priority date. However, the priority date calendar does not behave as does the regular year calendar. On a monthly basis, priority dates can advance more rapidly, move more slowly, or stall out altogether and not move at all.

The best way to understand this is to think of a line to get into a movie theater that is so long that it stretches around the block so that it is not even possible to accurately predict how many people are in line waiting. Think of these people as the immigrants seeking green cards. Think of entrance into the movie theater as the time when a green card becomes available. If the theater holds 200 people and has three showings a day, which equals 600 people a day, this would be the quota for the people waiting. If more people are in line than originally estimated, then the wait time will be extended. If the first estimate was too low, then the projected wait time will be reduced because people can enter more easily. This is the basic concept behind the setting of priority date availability in the U.S. immigration system.

What the U.S. Supreme Court Did

In an unusual lineup of justices, with conservative and liberal judges joining together on both the majority and dissenting sides of the issue, the Supreme Court ruled 5-4 against those untold thousands of young immigrants who were included on their parents' visa petitions but "aged out" by turning 21 while the cases were still pending.

Therefore, all of the time the children spent waiting with their parents will be extinguished, and the parents will have to file new petitions for their adult, unmarried children. As of August 2014, the priority date for the new category they will find themselves in, "unmarried sons and daughters of a permanent resident," is currently up to July 1, 2007, thus adding many years before the day will arrive when these people will finally be able to join U.S. society as legal residents.

This situation constitutes not only another setback for intending immigrants and their families but a hardship for their communities as well. Loss of familial stability and decreased tax revenues due to fewer lawfully employed workers all sap the viability of a society.

But that's a bigger story for another day....