The battle to provide relief for aged-out children of legal permanent residents had been at a stand-still in courts till last week. U.S. District Court Judge James V. Selna granted a class-action lawsuit certification against USCIS. The case is Costelo v. Chertoff and a decision is expected by the end of this year.

Under the lesser-known Section 3 of CSPA, codified at INA § 203(h)(3), the derivative beneficiary of a petition is entitled to keep the original priority date for re-petitioning by the legal resident parent. USCIS refused to follow the law and maintained that an aged-out beneficiary has to go back to the end of the line and wait another 10 years for permanent residency, effectively separating a child from her/his legal resident parents.

How does that work? Here is an example:

1. Maria is a beneficiary under the petition filed for her mother by her U.S. citizen aunt when she is 4 years old.

2. It takes 20 years for that petition to be approved, making Maria 24 when her mother can get legal permanent residency.

3. But Maria does not qualify. She is over 21 and no longer qualifies under the original petition. This makes her undocumented and/or if she is overseas, she is separated from her family.

4. CSPA does provide relief in this case, saying that Maria can keep her original priority date for re-filing. USCIS argues that she doesn’t and must wait under 20 years at the back of the line.

Obviously, USCIS has the most illogical position. The BIA recently made a ridiculous ruling in Matter of Wang, reaffirming this illogical position. It doesn’t make sense–why should some immigrant youth have to wait in line twice even when their families followed the law right down to the tee?!

The courts have now agreed to weigh in on this matter.

If you are in this situation, you may want to hit up the law firm of Reeves & Associates, the lead class counsel in this case. And don’t leave the country yet.