Supreme Court Hears Oral Argument in CSPA Case; USCIS Issues Policy Guidance

The Supreme Court heard oral argument in Mayorkas v. Cuellar de Osorio on December 10, 2013. The case challenges a Board of Immigration Appeals (BIA) interpretation of the Child Status Protection Act (CSPA) with respect to children aging out before a visa becomes available. The CSPA provides continuing eligibility for immigration benefits to the beneficiaries of certain petitions when the beneficiary has “aged out” by turning 21. U.S. Citizenship and Immigration Services (USCIS) issued related policy guidance just before the Supreme Court argument.

Highlights of the argument and the guidance follow.

Supreme Court case. Mayorkas v. de Osorio questions whether all children of immigrant visa applicants, or only some, who turn 21 while awaiting a visa may retain their original priority date or must wait at the back of a new visa line. The case arose in the context of a family-based green card petition, but the Court’s decision will also affect beneficiaries of employment-based green card petitions.

In Matter of Wang, the relevant BIA case, the Board held that the automatic conversion and priority date retention provisions of the CSPA did not apply to a person who aged out of eligibility for an immigrant visa as the derivative beneficiary of a family-based fourth preference visa petition, and on whose behalf a second preference green card petition was later filed by a different petitioner.

The petitioner urged a broad interpretation of the CSPA. The brief by amici curiae in Wang similarly maintained that the provision amended by the CSPA, § 203(h)(3) of the Immigration and Nationality Act (INA), is ameliorative and inclusive and does not limit its automatic conversion and priority date retention provisions to family-based preference petitions. In contrast, the USCIS urged a narrower interpretation, arguing that established regulatory practice requires that the original priority date will be retained only if the second visa petition is filed by the same petitioner. Thus, USCIS maintained that to effect an “automatic conversion” under the CSPA, the petitioner also must have been the petitioner on the earlier green card petition. According to the USCIS, such an interpretation of the statute avoids open-ended petitions with no timeliness considerations.

The Supreme Court’s decision is expected by late June.

USCIS policy guidance. Shortly before the Supreme Court argument in Mayorkas v. Cuellar de Osorio, USCIS issued a policy guidance memorandum on the CSPA.

The memo notes that the CSPA addresses certain “age out” consequences in those instances where “aging out” of eligibility for classification as a child is caused by a delay in the adjudication of the petition or application. The CSPA applies widely to petitions for family-based immigrants and also applies to employment-based immigrants, diversity visa immigrants, refugees, and asylees when delays in processing petitions would cause a beneficiary to lose the ability to immigrate as a child due to reaching 21 years of age.

The memo specifically addresses automatic conversion and priority date retention as set forth in INA § 203(h)(3). The memo notes that this provision authorizes certain immigrant visa petitions to “automatically be converted to the appropriate category and…retain the original priority date.” The memo provides guidance for assigning priority dates in those instances where a petitioner requests that the priority date from a separate, previously filed petition be applied to a later filed family-based second-preference “B” petition (F-2B) or seeks adjustment of status in the F-2B category, based upon an originally filed family-based second-preference “A” petition (F-2A) under the CSPA.

The guidance quotes the following related update to the USCIS Adjudicator’s Field Manual for officers considering eligibility for priority date retention:

“(A) If the beneficiary was previously found eligible as a derivative on an approvable F2A category petition (“petition #1”) that has not been revoked or otherwise terminated, and the subsequent petition (“petition #2”) was filed by the same petitioner as in petition #1, USCIS will apply the earlier priority date to petition #2 (regardless of whether the second petition is initially filed in the F-2B or F1 classification).

(B) If the beneficiary was previously the subject of an approved F-2A petition and that petition has not been revoked or otherwise terminated, any subsequent petition filed by the same petitioner, which is approved by USCIS shall be entitled to the older priority date and approval of the new petition shall be considered a reaffirmation of the previous approval, as provided in 8 CFR § 204.2(h)(2).

(C) If the principal beneficiary of an F-2B petition (petition #2) was previously the derivative beneficiary of a petition filed pursuant to sections 203(a)(1), (3), (4), or 203(b), and the petitioner of petition #2 was not the petitioner on the previous petition (petition #1), then petition #2 is NOT entitled to the older priority date. See 8 CFR § 204.1(b); 22 CFR § 42.53(a). Instead, petition #2 should be assigned a priority date based on the date of filing. Send the standard notice of denial of priority date retention provided through the appropriate chain of command. Continue to otherwise adjudicate the petition on its merits in accordance with applicable law, regulations, and policies.

(D) If an individual files an application for adjustment of status in the F-2B or F-1 classification based on previous F-2A derivative classification, but the petitioner did not file a new (subsequent) petition on behalf of the individual, the individual may be eligible for adjustment of status if:

(i) he or she was previously the derivative beneficiary of an approvable F-2A petition;

(ii) he or she qualifies as the son or daughter of the original petitioner (take particular care that step-relationships were created before the applicant turned 18); and

(iii) all other eligibility requirements are met.

(E) If an application for adjustment of status is pending and eligibility is solely contingent upon a request for priority date retention for which he or she is not eligible, hold the application pending the U.S. Supreme Court’s ruling on Mayorkas v. Cuellar de Osorio and applicable guidance issued pursuant to that ruling. If, however, the applicant has another basis of eligibility for adjustment, adjudication based on the alternate basis of eligibility should not be delayed.

(F) If a denied applicant for adjustment of status files a motion to reopen or reconsider, or if such a motion is pending, and eligibility is solely contingent upon a request for priority date retention for which he or she is not eligible, hold the motion pending the U.S. Supreme Court’s ruling on Mayorkas v. Cuellar de Osorio and applicable guidance issued pursuant to that ruling. If the applicant demonstrates another basis of eligibility for adjustment that was not properly considered before denial, the application should be reopened and adjudication based on the alternate basis of eligibility should not be delayed.”

• Matter of Wang (PDF)
• Links to various related filings in Mayorkas v. de Osorio are available here and here. 
• The USCIS policy guidance memo, which includes example scenarios (PDF) 
• More CSPA information