I live in the 9th Circuit and aged-out. Does Osorio mean I should apply for adjustment?

9 Oct

Since we wrote about the landmark victory for undocumented youth in the U.S. Court of Appeals for the 9th Circuit in Cuellar de Osorio, we have been inundated by the following question: I think this covers me, should I apply for adjustment of status now?  The answer, like so many legal answers, is the perpetually unsatisfying “it depends.”  We have prepared this information to help you understand the issues and make a decision about whether applying is appropriate for you.  However, this stuff is complicated and one size does not fit all.  We strongly suggest that anyone contemplating applying for adjustment of status based upon Osorio consult with a reputable immigration lawyer.

Do I live in the 9th Circuit?

The Ninth Circuit is the judicial district that covers a large section of the American west.  It includes the following states: California, Oregon, Washington, Alaska, Hawaii, Nevada, Arizona, Idaho, Montana and Guam.  The Osorio decision is federal immigration law in these states.  Immigration officials are obligated to follow the law of the circuit in which the office sits.

Who does the Osorio decision help?

The Osorio decision may help you if you were, as a child, the beneficiary of an immigrant petition for your parent (“derivative beneficiary”), but aged-out of eligibility by turning 21 before you could apply for your residence, and a new petition has been filed on your behalf.  Osorio held that an aged-out derivative beneficiary can reclaim their earlier date in the new petition.  So, for example, your grandmother filed for your mother, when you were sixteen.  The petition was approved, but you and your mother could not apply for residence until the filing date became current.  By that time, you were 22 years old.  Your mother would have been able to adjust to residence, but you had “aged-out” of eligibility as the immigration law no longer considered you a child.  At that point, your mother may have filed a petition for you as the unmarried daughter of a permanent resident.  That petition, under the law prior to Osorio, would have gotten the date that your mother filed the petition.  All that waiting on your grandmother’s petition would be lost and you would go to the back of the line of unmarried sons and daughters of permanent residents.  Under Osorio, you would be able to transfer the date of your grandmother’s petition to your mother’s petition and be eligible to apply immediately for residence.

So, how do I know if I am in the Osorio class?

You would need to have:

  1. A petition filed on behalf of a parent while you were a child
  2. Aged-out of eligibility by turning 21
  3. A new petition filed and approved on your behalf.

Is that all I need to apply for adjustment of status?

Just because you have an approved petition and a current date, you are not necessarily eligible for adjustment of status to residence.  In order to qualify for adjustment of status, you need:

  1. An approved petition.  Check!
  2. A current priority date. Check!
  3. to be admissible to the United States
  4. to have been inspected and admitted or paroled into the United States
  5. to have maintained lawful nonimmigrant status since your entry
  6. to not have worked without authorization since your entry
  7. If you were not inspected and admitted or paroled and entered without inspection, overstayed your visa, violated your status or worked without authorization, you will need to be “grandfathered under 245(i).”

Grandfather under 245 what?

If you entered without inspection or violated your nonimmigrant status, you are ineligible to adjust status in the United States, unless you are grandfathered under INA 245(i).  INA 245(i) forgives these transgressions for the paltry fee of $1000.  However 245(i) expired on April 30, 2001.  Only people who were the beneficiaries of petitions or labor certifications filed before that date can get the benefit of 245(i).  In addition, potential 245(i) beneficiaries must also show that they were physically present on December 20, 2000.

OK, I have all that, should I apply?

Well, it remains to be seen what the Citizenship & Immigration Service will do with the Osorio decision.

I thought you said that it was the law and CIS had to follow it?

Very simplistically, that is true.  However, the government could choose to appeal or seek rehearing of the decision.  In such a case, the government could ask a court to stay implementation of Osorio.  The government could also instruct the CIS to simply hold the cases in abeyance until the CIS can come up with a plan to administer these cases nationwide.  While such delay may not be entirely legal, an applicant who felt that her case was being delayed improperly and for an unreasonable amount of time would have to bring a lawsuit in federal court seeking to compel CIS to make a decision.  A court will not entertain such a lawsuit until the application has been delayed for several months as the statute only provides a cause of action for “unreasonable delay.”  Thus, it is not yet clear how CIS will react to these cases and how they will process them.

Is there any precedent for how they may react?

Yes.  Osorio is not the first case to reach this conclusion.  The Fifth Circuit reached the same decision in Khalid v. Holder in 2011.  Anecdotal evidence is that the CIS has recently begun to adjudicate and approve cases that were filed on behalf of people covered by Khalid.  Initially, cases were not being adjudicated, but as of July 2012, we have heard about approvals.

What are the risks of applying?

The risk of making yourself known to the government is always the same.  The government will place you into removal proceedings and an immigration judge could order you deported.   This is obviously a worst case scenario, but it is a possibility whenever you apply to CIS for a benefit.  That being said, we do not think that that is a extremely likely outcome for the following reasons: (1) you may be able to apply for adjustment before the Judge, who is not bound by any bureaucratic inertia from CIS; (2) CIS’ guidelines about placing individuals into removal proceedings discourage putting people into proceedings when they are denied benefits unless they have criminal records, have been involved in immigration fraud or are security risks; and (3) many would-be Osorio beneficiaries are DACA eligible and benefit from the greatest amount of favorable discretion.

In addition, there is a risk of losing money and having dashed expectations.  An application for adjustment will cost about $2500 in filing fees, which would not be returned if the case is denied.

So, what do I do?

Talk to a lawyer.  Understand the decision, your application and the costs and benefits of seeking adjustment and come to an educated decision.

29 Responses to “I live in the 9th Circuit and aged-out. Does Osorio mean I should apply for adjustment?”

  1. Scott D. Pollock October 10, 2012 at 9:16 am #

    Thanks, Andres. Great blog. One additional point is that Osorio is a nationwide class action for CSPA derivatives in the family based categories. So to the extent USCIS will implement it, it should apply outside of the 9th Circuit as well.

  2. SA October 10, 2012 at 2:12 pm #

    Very nice article. I have just sent out letters to both USCIS and NVC (since my petition is approved, NVC has my file) requesting to retain the priority date for my F2B petition from the original F4 petition where I was a derivative. Not sure if thats the right course of action, but thought it might be safer to retain the priority date first before applying for adjustment of status (I-485). Any thoughts?

    • Prerna Lal (@AQueerDesi) October 15, 2012 at 4:15 pm #

      I first asked for USCIS to issue the original priority date for the new F2B petition. They approved the petition but with a new priority date. Good luck!

      • Christian October 25, 2012 at 3:08 am #

        Prerna lal
        So USCIS didnt give you the original priority date?

    • Christian October 25, 2012 at 3:10 am #

      Hi SA
      Did you get any response from USCIS or NVC yet?

      • SA October 25, 2012 at 10:35 am #

        Christian,
        USCIS told me that since the file is with NVC, USCIS has no jurisdiction over it and they didn’t say anything else. Infact I could not even create a service request with CSC for that reason. If I do I-485, case will be transsferred back to USCIS, but I will wait until Dec 26 before pending that kind of money.

        NVC received my request, but did not say anything yet.

    • Christian October 25, 2012 at 3:12 am #

      Hi SA
      did you get any response from USCIS or NVC yet?

    • Christian October 25, 2012 at 11:48 am #

      Thanks for the info SA. I have similar situation. My mom got her GC 2010 with a PD of 1989. I was 7 y/o then. Idk if i should apply now and request for PD retention or just wait until Dec 26.

      • SA October 25, 2012 at 11:55 am #

        The lawyer who was closest to this lawsuit and most likely knows the most about CSPA has this article which helped me to realize that I should wait for filing I-485. Although, if your mom has not already filed an I-130 (F2B) for you then, personally I would definitely go ahead and file that to California Service Center now together with a letter referencing cspa ruling by 9th circuit and requesting PD retention. Always safe to talk to a lawyer about this kind of situation.

        http://blogs.ilw.com/carlshusterman/2012/10/9th-circuit-cspa-victory-dont-file-yet.html

        Goodluck

    • Christian October 25, 2012 at 12:05 pm #

      For example we apply I-130 now and USCIS gave us a new PD AND didnt grant the retention of priority date, and then after Dec 26 there were no appeals from the govt, can we write to USCIS again to retain our PD? Whats your opinion?

      • SA October 25, 2012 at 12:15 pm #

        Technically, current law in CSC is on our side until an appeal is made so if you apply I-130 now, I think there is a good chance to retain old PD given it is “processed by CSC”. If you still get a new PD and they don’t appeal by Dec 26, then this becomes the law (given the lawsuit was a nationwide class action) and most likely USCIS will release a memo with instructions on how to retain old PD. To answer your question we should be able to write to USCIS.

        Also, if no appeal is made, then it won’t matter which service center your I-130 is processed, you should be able to retain PD. That’s what I think, but I am not a lawyer. Only saying from my personal research on the web. Just hoping that USCIS won’t drag this anymore and release a memo (affecting nationwide) by accepting the 9th circuit ruling.

      • prernaplal November 27, 2012 at 1:21 pm #

        There is a stay on de osorio mandate until Dec 26, 2012, giving the government opportunity to file for a cert petition to the court. If they file for cert, the stay remains until final SCOTUS disposition of the case. If they don’t file for cert, the stay will be lifted, a mandate issued, and it is good law. In other words, we don’t know until Dec 27, 2012.

    • Christian October 25, 2012 at 3:05 pm #

      Dont they send the case to the closes service center where the petitioner resides?

  3. Cath October 11, 2012 at 10:52 am #

    very insightful. thanks so much for this. my case however is that I haven’t entered the US and have been staying in my country while waiting for my visa to be processed. am I covered by the 9th circuit jurisdiction if my mother’s petition to me under F2B was filed in California? all the best!

    • SA October 11, 2012 at 11:26 am #

      If the ruling holds (government don’t re-appeal to Supreme Court or the Supreme Court don’t reverse the 9th circuit decision), you should be covered given you meet the rest of the cspa requirement.

  4. Ford Custom October 25, 2012 at 9:01 am #

    Thanks for the valuable info you shared… My question is…I’m still unmarried (36yo now) and my parents priority date (Sister-to-sister) was 1984. I never step foot in the US and they didn’t petition me since they got their Green cards and settled in California. Am I eligilble with the Ninth Circuit decision? When will be the best timing to get a lawyer (now or after 90days)?

    • SA October 25, 2012 at 10:32 am #

      If I were you , I would talk to a lawyer after Dec 26, 2012 depending on whether Justice Dept appeal to supreme court or not.

      Goodluck

      • Ford Custom November 7, 2012 at 9:46 pm #

        Thank you! Wrong timing would cost me alot of money…

      • Ford Custom November 27, 2012 at 4:33 am #

        With the result of the elections, What are the chances that Justice Dept will appeal this in SC?

  5. Joe October 27, 2012 at 2:53 am #

    My parents (F-4 beneficiary GC holder) live in California (so they are under the jurisdiction of 9th circuit), but I go to school in Iowa. Could they file I-130 under CSPA priority date retention Osorio ruling on my behalf? Will the Osorio ruling also apply to my case? Iowa is under the jurisdiction of 7th circuit. Thanks!

  6. Fahad Al Islam November 1, 2012 at 8:24 am #

    Hi i am abangladeshi govt official.my mother petitioned for me in the 19th sep,2010 .our original petition was at 1996.when the visa number gets available i got aged out.my parents live in machachussets.can i get the benefit of 9th circuit

    • Lal November 7, 2012 at 3:39 pm #

      If I understand your post, yes, you should be able to benefit from this by requesting the original priority date, getting you in front of the line. It is best to talk to a lawyer, it is well worth it doing it right than making a mistake and losing time.

  7. SA December 17, 2012 at 5:34 am #

    Hi Guys,

    Any update on the CSPA case? Did the government decide to appeal to supreme court?

  8. Ford Custom December 25, 2012 at 1:27 pm #

    Hi,

    I hope someone can help enlighen us on this: “GOVERNMENT’S UNOPPOSED MOTION TO EXTEND THE STAY OF THE MANDATE PENDING THE GOVERNMENT’S DECISION WHETHER TO FILE A PETITION FOR CERTIORARI.”

    • SA December 26, 2012 at 12:46 pm #

      Govt. has requested and granted more time to decide whether to file cert. They have until Jan 25. The mandate stay has been also extended to Jan 25 so no agencies can implement De Osorio until a mandate is issued.

      • Ford Custom December 27, 2012 at 6:44 am #

        After Jan 25,2013, Can the government ask for more time?

      • Ford Custom December 27, 2012 at 6:48 am #

        Another 30days is like eternity especially for those beneficiaries waiting for almost three (3) decades now. I thought we’ll have an early New Year’s gift…='(

Trackbacks/Pingbacks

  1. Should You Apply for Adjustment If You Live In The Ninth Circuit And You Aged-Out? | Prerna Lal - October 10, 2012

    […] Andres Benach has written a great post on whether young adults who aged out under Matter of Wang can apply for adjustment in the Ninth […]

  2. DACA, Provisional Waviers, and de Osorio? « Lifted Lamp - January 4, 2013

    […] While there are countless other administrative actions that the administration can take, another step that would further demonstrate the administration’s willingness to place family unity and sensible immigration policy over “the way things have always been,” would be for the administration to forgo Supreme Court review in de Ososrio v. Mayorkas, the decision of the 9th Circuit Court of Appeals that allows the unmarried sons and daughters of permanent residents who aged out of eligibility under petitions for their parents to receive credit for the time they waited under their parents’ petitions.  In de Osorio, the 9th Circuit joined the 5th Circuit in Khalid v. Holder rejecting the Board of Immigration Appeals decision in Matter of Wang.  Both Courts of Appeals decided that the plain language of the  Child Status Protection Act allowed kids who aged-0ut of eligibility under petitions filed for their parents to recapture the time that they waited when their parents, now permanent residents, filed petitions for them.  In Matter of Wang, the Board decided that the kids could not recapture that time and would have to go to the end of the line.  This resulted in what one brief in de Osorio calculated would be a 115 year wait for an unmarried adult son or daughter of a Mexican citizen!  The de Osorio decision has the potential to help ensure family unity for thousands of families where parents and minor children have received residence, but one or two older children aged-out.  The de Osorio decision came down on September 26 and the next stop for review is the Supreme Court.  The government has sought two extensions to decide whether to appeal to the Supreme Court.  As of now, their petition for Supreme Court review, known as a petition for a writ of certiorari, is due on January 26.  If the government files a petition, the Supreme Court may or may not take the case.  However, the de Osorio case will likely not take effect until the Supreme Court decides whether to take the case.  If the Supreme Court takes the case, then we will have to wait until the Supreme Court decides the matter before we know anything further.  If the Supreme Court does not take the case, the de Osorio case will take effect and many people wil… […]

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