Blow to the aspirations of hundreds of thousands of applicants.
By Deepak Chitnis
WASHINGTON, DC: The Supreme Court has ruled that the majority of individuals waiting for approval of their families’ visa applications will have to re-file their own applications, and go to the back of the line, if they turn 21 years old while waiting for their paperwork to be approved.
The decision, which was reached on Monday by a 5-4 ruling of the Supreme Court Justices, is a major setback for millions of immigrants currently waiting to become permanent residents of the US. Ultimately, the Justices chose to uphold the Obama administration’s reading of the law, which they said has language that is so dense and misleading that they simply can’t re-interpret it any other way.
What this means is that hundreds of thousands of nieces, nephews, grandchildren, and other family members of US permanent residents and citizens – many of whom are applying for visas so that they can legally reunite with their family members here in the US – will have to go through the arduous process of re-applying, and will likely have to wait several more years to be granted permission to enter the country and see their family members.
Only the children of permanent residents or citizens who filed paperwork on their behalf would be able to retain their position in line, even when they turn 21, and have not yet got their documentation to emigrate to the US.
The case came to the Supreme Court’s jurisdiction because of a lawsuit filed by Rosalina Cuellar de Osorio, an immigrant from El Salvador whose mother is a US citizen. Rosalina was a principal beneficiary of a visa petition filed by her mother, with her brother, Melvin, as a derivative beneficiary of the same petition.
The application for Rosalina and Melvin’s application was approved in 1998, but the visa backlog stopped them from actually receiving their visas until 2005. By that point, however, Melvin – who was 13 when the petition was initially approved – had just turned 21, thus disqualifying him as a child and forcing him to re-start the entire process all over again.
The case was passed up from the US Court of Appeals for the 9th District, falling right into the lap of the nation’s highest judiciary body. But now, there is little hope for anyone else like Melvin who filed their application and turned 21 during the time that their paperwork was under review, or waiting to even be looked at, by the US Department of State and/or the US Citizenship and Immigration Services (USCIS).
Dissenting opinions in the Supreme Court came from Justices Sonia Sotomayor, Clarence Thomas, Stephen Breyer, and Samuel Alto, the latter of whom wrote his own individual dissent apart from the other three. Chief Justice John Roberts, along with Justices Antonin Scalia, Anthony Kennedy, Ruth Bader Ginsberg, and Elena Kagan, were the five who voted to uphold.