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Supreme Court Reversal of Ninth Circuit Affects "Aged Out" Visa Beneficiaries

This week the United States Supreme Court issued its long-awaited decision in Scialabba v. De Osorio, in which the justices reversed by a 5 to 4 decision the Ninth Circuit’s decision in De Osorio v. Mayorkas. The Supreme Court held that the Board of Immigration Appeals (BIA) reasonably interpreted an ambiguous provision in the law addressing automatic conversion and priority date retention for certain beneficiaries of family-based immigrant petitions who are deemed to have “aged out” of eligibility to receive a visa and immigrate to the United States. Under the BIA’s decision in Matter of Wang, to which the Supreme Court accorded deference, Immigration and Nationality Act (INA) Section 203(h)(3) provided automatic conversion and retention of the original immigrant petition filing date (the “priority date”) for aged out beneficiaries who would simply slide into another preference category by virtue of having a qualifying relationship with the same sponsor who filed the original immigrant petition.

According to the majority in Scialabba, the BIA reasonably determined that Section 203(h)(3) did not allow these aged-out beneficiaries to retain their original priority date while enjoying conversion to a new family preference category based on a subsequent petition filed by a different sponsor. Furthermore, the concept of automatic conversion entails a new family preference category being available to the beneficiary based on an existing relationship with the initial sponsor immediately upon the beneficiary’s aging out of eligibility. The Supreme Court validated the BIA’s reasoning that the appellants’ interpretation of Section 203(h)(3) would be tantamount to letting derivative beneficiaries who had aged out to jump ahead of other persons waiting in line for their visas, thereby upsetting the INA’s system of priority dates and family preferences.

Timothy D. Widman is a Immigration Attorney and the owner of the Law Office of Timothy D. Widman, with offices in San Jose and Cupertino.

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