In 2002, the Child Status Protection Act (CSPA) was signed into law, providing much needed relief to beneficiaries of petitions who would otherwise not be able to immigrate because they had turned 21. Through application of the CSPA, many beneficiaries of family-based, employment-based, and some humanitarian petitions (including asylees and refugees) are able to preserve their status as children under the immigration law even though their biological ages may well be over the age of 21 (a "child" is an unmarried son or daughter under the age of 21).
There are a variety of contexts in which the CSPA's provisions are applied, which is why this particular subject is so complex. Generally speaking, applicants must be the beneficiary of a pending or approved visa petition on or after August 6, 2002. The least complicated situations are ones in which US Citizens file for Immediate Relatives who are under the age of 21. Under the CSPA, the child's age is frozen as of the date the I-130 is filed, even if by the time the petition is approved or a visa becomes available, the "child" may now be over 21. (However, it is important to note in this example that should the beneficiary marry, he or she would no longer be considered a child notwithstanding the CSPA because he or she is no longer single, which is part of the definition of a child. )
Another common scenario involves family and employment preference category beneficiaries (and their derivatives) who age out, through no fault of their own, due to the interminable backlogs. The CSPA addresses this problem by applying a formula that essentially takes into consideration how long USCIS takes to approve a visa petition, and subtracts that time from the beneficiary's biological age. If after the calculation, the adjusted age is below 21, and the applicant has sought to acquire permanent residence within one year, he or she will still be classified as and able to immigrate as a "child" under the Immigration and Nationality Act ("INA").
So, what is the current controversy brewing in the Supreme Court about?
The subject of much current litigation, however, is the interpretation of Section 3 of 203(h)(3) of the INA regarding retention or recapture of priority dates. The provision of the statute at issue states:
If the age of the alien is determined under paragraph (1) [of 203h] to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.
Many attorneys, including our firm, have interpreted this to apply to derivative beneficiary children who have aged out but then have had new petitions filed for them by different petitioners. So, for example, if you filed for your sister and her derivative child had aged out, your sister should, in theory, according to the plain language of the statute, be able to immigrate here and file a new I-130 petition for that same child who was left behind and request retention of the priority date that was originally assigned to your case for her-instead of being assigned an entirely new priority date and having to wait countless, unnecessary years.
What is USCIS's position?
The government's position, on the other hand, interprets Section 3 of 203(h)(3) very conservatively. It adheres to the Board of Immigration Appeal's decision in Matter of Wang, 25 I & N Dec. 28 (BIA 2009), which remains a precedential decision. Matter of Wang stands for the proposition that the "automatic" provisions referred to 203(h) only apply in situations where the "beneficiary of that petition then falls within a new classification without the need to file a new visa petition." Id. at 35. This would fall within the narrow circumstances of a beneficiary who ages out of a previously approved F2A preference petition (unmarried child of a permanent resident); instead of the petitioner having to refile a new visa petition with a new priority date, the same petitioner would be able to file an F2B petition (unmarried child of a permanent resident) for the aged out individual and request priority date retention, which of course, would save years of unnecessary waiting. Similarly, a derivative beneficiary of a previously approved F2A classification who has aged out might be able to adjust status as an F2B or F-1 using the original priority date provided he/she qualifies as a son or daughter of the original petitioner and all other eligibility requirements are satisfied.
However, the government refuses to and will not apply priority date retention to cases involving derivative age-outs outside of an F2A context, ie., aged out children of F-4 (sibling) cases. This position has now been solidified in the form of a Policy Memo dated November 21, 2013 and entitled "Guidance to USCIS Offices on Handling Certain Family-Based Automatic Conversion and Priority Date Retention Requests Pending a Supreme Court Ruling on Mayorkas v. Cuellar de Osorio" (Policy Memorandum-602-0094). The memo amends the Adjudicator's Field Manual ("AFM") to implement its current policy of only honoring under specified conditions retention date requests for individuals (primary and derivatives) who have aged out of previously approved F2A petitions. Retention date requests by derivatives originating out of preference categories other than F2A are to be denied.
The timing and release of this memo is, as other members of the legal community who have been monitoring this case, peculiar, to say the least, as the Supreme Court is set to hear oral arguments December 10 of this year in Mayorkas v. Cuellar de Osorio (Docket No. 12-930). A ruling is anticipated to be issued in the spring of 2014. We will obviously be watching this case very closely and write on future developments as they arise.