USCIS Memo on CSPA Retention of Priority Date

On June 9th, 2014, the U.S. Supreme Court held in Scialabba v. Cuellar de Osario that the Child Status Protection Act (CSPA) only applies to retain the original priority date for aged-out children in family-based immigrant petitions if a new visa petition (e.g., one filed by their parents) is not needed. For more detailed discussion of this issue, please see our earlier blogging on this issue.

  

USCIS recently issued a policy memo to direct its immigration officers to process immigrant petitions previously put on hold pending the outcome of Scialabba. The policy memo, entitled "Updated Guidance to USCIS Offices on Handling Certain Family-Based Automatic Conversion and Priority Date Retention Requests Following the Supreme Court Ruling in Scialabba v. Cuellar de Osorio",  provides the following guidance to immigration officers:

• Earlier priority date under CSPA may only be assigned in those petitions filed by the same petitioner on behalf of the same principal beneficiary. Further, only approved petitions that have not been denied, revoked, or used for another immigrant visa may qualify. See 8 CFR 204.2(h).

• For adjustment of status cases automatically converted from a derivative in the F2A category to a principal in the F2B category (upon reaching the age of 21), the original priority date from the initial petition is retained and available to the new F2B classification.  A new petition by the petitioner is not necessary.  See 8 C.F.R. 204.2(a)(4).

• For other adjustment of status cases pending solely upon a request for priority date retention and the the applicant is not eligible based on the Supreme Court decision, the officer should deny the application unless the applicant appears to be eligible to adjust based on a different visa petition or different section of law.  Requests of evidence may be issued to gather evidence to confirm eligibility.

• For pending motions to reopen or motions to reconsider based on the same priority date retention issue, the immigration officer should deny the motion if it is clear now that the applicant is not eligible unless there are other ways for the applicant to obtain an immigrant visa.  Eligibility for adjustment of status must have existed at the time the adjustment application was filed.