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

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.

Benach Collopy

Benach Collopy N/a
4530 Wisconsin Ave NW
Suite 400

DC 20016
Map & Directions