A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Wednesday, November 13, 2013

Supreme Court to hear important Child Status Protection Act issue

On December 10, 2013, the United States Supreme Court will hear arguments on an extremely important issue regarding Section 3 of the Child Status Protection Act (CSPA).  The outcome of this case will determine which group of "aged out" children in immigrant visa petitions are allowed to keep the earlier priority date of the original visa petition and hence be able to obtain their U.S. green card faster. Back in 2009, I already predicted this issue would likely go up to the U.S. Supreme Court.

Background of the Case
Congress passed Child Status Protection Act in 2002 to provide relief to "aged-out" children in immigrant visa petitions.   Section 3 of the CSPA, codified as Section 203(h)(3) of the Immigration and National Act (INA), provides that "the [aged-out beneficiary's] petition shall automatically be converted to the appropriate category and the [beneficiary] shall retain the original priority date issued upon receipt of the original petition."  In Mayorkas v. De Osorio (Docket No., 12-930), the Supreme Court will decide whether Section 203(h)(3) applies to derivative beneficiary children in all visa petitions or just a subgroup of them.  Two examples will illustrate the importance of the case.

Example#1: Abel's father, a lawful permanent resident (LPR), filed an immigrant visa petition on behalf of Abel when he was under 21 under the Family 2A (F2A) preference category.  Due to visa backlog, Abel's case was pending for many years.  When his priority date finally became current, Abel was already over 21 and was no longer considered a "child" under the law.  However, Abel could still immigrate under the Family 2B (F2B) preference category as a son of a LPR over the age of 21.  There is no dispute that Section 203(h)(3) applies to automatically convert Abel's petition from F2A to F2B visa category, and that Abel is able to retain his initial priority date in the F2B petition. Consequently, Abel will be able to obtain his permanent residence status a lot faster than he otherwise would have.

Example#2: When Billy was 15 years old, his grandfather as a U.S. citizen filed an I-130 visa petition on behalf of Billy's father.  It was filed under the F3 preference category (married sons and daughters of USC) because Billy's father was married.  Billy was included in the visa petition as a derivative beneficiary child under the age of 21. Unfortunately visa numbers was not available until after Billy had already turned 21.  As a result, he was not able to immigrate with his father.  Upon becoming a LPR of the United States, Billy's father immediately filed an I-130 visa petition on behalf of billy pursuant to the F2B category.   If Section 203(h)(3) benefits are available to Billy, then he would be able to retain the priority date of his grandfather's petition from 10 years ago.  Otherwise, he would have to wait a lot longer.

The Issue of the Case
The main issue the U.S. Supreme Court will decide in Mayorkas v. De Osorio is whether Section 203(h)(3) of the INA (Section 3 of the CSPA) applies to all applicants who qualify as child derivative beneficiaries at the time a visa petition is filed but age out of qualification by the time the visa becomes current to the primary beneficiary.   The Government argues that Section 203(h) only applies to F2A direct beneficiaries (such as Abel in example#1 above) and derivative children beneficiaries while the Respondents argue that it should be applied to all derivative children beneficiaries including those in other preference categories (such as Billy in example#2 above).

The Statute at Issue
Section 3 of the Child Status Protection Act (CSPA), codified at Section 203(h) of the Immigration and Nationality Act (INA), provides:

(h) Rules for determining whether certain aliens are children
(1) In general
For purposes of subsections (a)(2)(A) and (d) of this section, a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 1101 (b)(1) of this title shall be made using—
(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d) of this section, the date on which an immigrant visa number became available for the alien’s parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability; reduced by
(B) the number of days in the period during which the applicable petition described in paragraph (2) was pending.
(2) Petitions described
The petition described in this paragraph is—
(A) with respect to a relationship described in subsection (a)(2)(A) of this section, a petition filed under section 1154 of this title for classification of an alien child under subsection (a)(2)(A) of this section; or
(B) with respect to an alien child who is a derivative beneficiary under subsection (d) of this section, a petition filed under section 1154 of this title for classification of the alien’s parent under subsection (a), (b), or (c) of this section.
(3) Retention of priority date
If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d) of this section, 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.
(4) Application to self-petitions
Paragraphs (1) through (3) shall apply to self-petitioners and derivatives of self-petitioners.

Main Arguments in the Case
Because of the importance of this case, in addition to the Respondents in the case and the Government, many immigrant rights groups have also presented legal arguments as amici curiae.  The major arguments are summarized as follows:

1) Statutory interpretation:  Legal analysis usually starts with statutory interpretation, which is a process to find out exactly what a statute means.  It starts with the everyday plain meaning of the words in the statute. If the meaning is ambiguous, then the court usually defers to administrative agency's reasonable interpretation of the meaning.  Here the Board of Immigration Appeal (BIA) had interpreted Section 203(h) to benefit only F2A beneficiaries (See another blog post on Matter of Xiuyi WANG.)  Government agrees with the BIA interpretation that the term "automatically be converted" in Section 203(h) implies that no new petition or petitioner should be involved.  Since for conversion to occur, derivative beneficiaries in other preference categories such as F3 and F4 require a new petition to be filed by the principal beneficiary (parent) on behalf of the aged-out child, Government argues that Section 203(h)(3) does not apply to them. 

Respondents, on the other hand, argue that the language is not ambiguous (which is also the position of the Ninth Circuit Court of Appeals) and therefore the Court should not defer to the BIA interpretation. They also argue that "automatic conversion" does not necessarily occur when a beneficiary turns 21; instead it occurs when the subsequent F2B visa petition filed by her parent is adjudicated by USCIS.

2) Policy argument vs. legislative history:  CSPA was enacted to foster family unity, and therefore should be interpreted in the most generous manner -- this is probably the strongest argument of the Respondents and the immigrant rights advocates.  Government does not address this issue directly. Instead it focuses on the legislative history of CSPA and argues that nothing in the legislative history supports a broad reading of Section 203(h).

3) Fairness issue:  Respondents and immigrant rights groups argue that a narrow interpretation of Section 203(h)(3) does not make sense as it would confer less benefits to U.S. citizens than to lawful permanent residents.  Specifically, F1, F3 and F4 immigrant visa petitions are filed by U.S. citizens while F2 cases are filed by permanent residents. Therefore, Section 203(h) should be read to apply for all preference categories so as to confer the same rights to U.S. citizen petitioners.  On the other hand, Government argues that it would not be fair to the other F2B beneficiaries already waiting in line if individuals such as Billy above are allowed to "jump the line" in F2B. Further, Government also points out that it would also not be fair to the petitioning parents in the existing F2B cases who obtained their green cards before the aged-out children's parents at issue.

It would be difficult to predict with certainty how the U.S. Supreme Court will rule on this very important issue.  Whatever the decision is, it will have far-reaching effects on immigrant families for many years to come.   For the intending immigrants, it is extremely important for them to pay attention to the latest development of this critical Child Status Protection Act issue.


  1. On November 21, 2013, DHS-USCIS issued a policy memo on this retention of priority date issue. Specifically the agency advises its employees to continue applying the current agency policy pending the Supreme Court decision in Mayorkas v. de Osorio. Specifically, USCIS will grant requests for priority retention in cases in which a petitioner files an F2B petition on behalf of a former derivative beneficiary from a previously-approved F2A petition. The agency will also grant adjustment of status to eligible derivative beneficiaries of previously approved F2A cases without a new visa petition filed by the petitioner. The previous priority date will also be kept in this situation. Finally USCIS will continue to deny retention of priority date requests in visa petitions filed by a petitioner other than the original one.

  2. Thank you for this information. So is this memo saying that had my aunt (the original petitioner) who is a US citizen filed an F2B petition instead of my mom (who came here in 2013), I could have retained the original petition date in 1989 filed by my aunt to petition my mother? When can we expect for a decision from the US Supreme Court to come out?

    Thanks! - Albert, gegalici@mtu.edu

  3. Greg: Your aunt could not have filed a petition for you directly. There is no such a visa category. According to the USCIS memo, if your mother filed a petition for you when you were under 21, and the case is converted to F2B after you have turned 21, then you can keep the original priority date. The Supreme Court may decide differently. The decision should come out next spring. Stay tuned.

  4. Today, the Supreme Court issued a 5-to-4 decision in Scialabba v. Cuellar de Osario (formerly known as Mayorkas v. Cuellar de Osorio). This decision held that the Child Status Protection Act (CSPA) only applies to retain the original priority date for those aged-out children who qualified or could have qualified as principal beneficiaries of an immigrant visa petition. If they need a new petition (e.g., one filed by their parents) to fit into a new visa category, CSPA does not apply and they must stand in line again. This is just a quick update of our previous blogging on this important issue. We will discuss this case further in details soon.

  5. I was approved for cspa opt out.. But now F1 has a more current priority date.. Can i opt out of the cspa opt-out? Since the cspa is now working against me.. Thank you

    1. Btw foreign state chargability is phililppines