NOTWITHSTANDING blustery weather conditions in the Nation’s capital that have forced the closure of many governmental offices, the US Supreme Court will hear oral argument December 10, 2013 in Mayorkis v. De Osorio, et. al., involving the retention of visa priority dates for most derivative beneficiaries of family-based petitions who have “aged out.” The high Court accepted certiorari in this case in order to settle a “split” between the US Courts of Appeal for the 5th and 9th Circuits on one side vs. the 2nd Circuit, who have come down in polar opposition to one another on cases interpreting the CSPA.
Late last year, the stage was set for a probable Supreme Court showdown, when the US Courts of Appeals for the 9th Circuit (in D’Osorio v. Holder I) and 5th Circuit (in Khalid v. Holder) each issued published opinions addressing the same issue within one week of each other and came down on polar-opposite sides. The 9th Circuit, however, later reversed itself on petition for rehearing (in D’Osorio II) and joined the 5th Circuit determining that derivative beneficiaries of visa petitions who “age out” under the CSPA formula become beneficiaries of second-preference petitions vis-a-vis their parents as green card holding “petitioners,” and retain the original priority date on the petition through which their parents immigrated. Unfortunately, the US Court of Appeals for the 2d Circuit issued a decision in the meantime holding that the priority-date retention provision of the CSPA/INA §203(h) only applies to petitions originally filed under the family-based second preference, setting the stage for Mayorkis v. D’Osorio.
At issue is whether the Board of Immigration Appeals’ (BIA) interpretation of Immigration & Nationality Act (“INA”) section 203(h) in Matter of Wang, which disallowed the retention of visa priority dates for most derivative beneficiaries of family-based petitions who had “aged out,” is correct. Under the CSPA, the age of these beneficiaries is deemed to be their biological age on the date a visa becomes available to them, less the length of time that the I-130 or I-140 visa petition was pending between filing and approval with the USCIS. The critical provision at issue in these cases is Section 203(h)(3), which, assuming a son or daughter is deemed to be over the age of 21 at the time their parents adjustment of status per the CPSA formula, states that “[t]he 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 position.”
Prior to Matter of Wang, the BIA had issued an unpublished decision, In re: Garcia, which held that an aged-out derivative Beneficiary on a family based third preference petition became the beneficiary of a family-second preference visa petition vis a vis her parent who had adjusted status, but retained the original priority date on the third preference petition that had been filed on behalf of her parent. Under this interpretation, the “aged out child” avoids being placed at the back of the line for second-preference petitions and can immigrate or adjust status fairly quickly, relying on the original priority date on his parent’s petition. In Matter of Wang, the BIA reversed itself and held that the “priority date retention” provision of INA §203(h) only applies to derivative beneficiaries of Second preference petitions, which is limited to the son or daughter of a single son or daughter of a green card holding parent.
The priority date retention for the situation under the second preference; however, has existed for years in the USCIS’ regulations, which means that for the US Supreme Court to adopt the 2d Circuit’s opinion that Matter of Wang is a “reasonable interpretation” of Section 203(h)(3) would require it to believe that Congress merely intended to codify a USCIS Regulation, and did a poor job of it, in enacting the CSPA. Although the USCIS could have adopted a rational approach embracing the 9th and 5th Circuits’ interpretation of the CSPA and enacted a clarifying regulation applicable throughout the country, the Attorney General sought review before the US Supreme Court.
As two Circuit Courts of appeal have issued well-reasoned opinions in support of priority date retention for all petitions and a group of US Senators who were responsible for drafting and securing passage of the CSPA in 2002 have filed an amicus brief to explain that Congress’ intent in enacting Section 203(h)(3) was in fact to allow priority date retention, it appears likely that the US Supreme Court will not follow the Second Circuit and the rule of D’Osorio II should become the law of the land.
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Daniel P. Hanlon is a California State Bar Certified Specialist in Immigration and Nationality Law and a principal of Hanlon Law Group, PC, located at 225 S. Lake Ave., 11th Floor in Pasadena, California; Tel. No. (626) 585-8005. Hanlon Law Group, PC is a “full-service Immigration Law firm.” E-mail: [email protected] and www.hanlonlawgroup.com.
