“ The decision, which had held that an “aged out” derivative beneficiary of a family or employment-based petition for immigrant status cannot benefit from the original priority date assigned to his or her parent, contrary to what many argue was Congress’ intent in passing the “Child Status Protection Act” (CSPA) in 2002.”
GIVING new hope to thousands of individuals who would have been adversely impacted by the 9th Circuit Court of Appeals decision in De Osorio et. al v. Holder, The Chief Judge of the 9th Circuit Appeals recently announced that the case would be reheard en banc and that the previous three-judge panel decision is no longer precedent in this Circuit. The decision, which had held that an “aged out” derivative beneficiary of a family or employment-based petition for immigrant status cannot benefit from the original priority date assigned to his or her parent, contrary to what many argue was Congress’ intent in passing the “Child Status Protection Act” (CSPA) in 2002.
Previously, the US Courts of Appeals for the 9th Circuit and 5th Circuit had issued published opinions addressing the same issue within one week of each other and came down on polar opposite sides. The 5th Circuit, in Khalid v. Holder, and the 9th Circuit in De Osorio et. al. v. Holder, were called upon to answer 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 beneficiary’s of family-based petitions who had “aged out,” was correct. Surprisingly, the 9th Circuit, which is generally known for taking a somewhat liberal stance in interpreting immigration legislation, ruled that the BIA’s restrictive reading did not run afoul of the statute, while the 5th Circuit shot down Matter of Wang, restoring hope to thousands of individuals and families who stand to benefit by the 5th Circuit’s interpretation.
At issue in both cases is the treatment of derivative beneficiary sons and daughters of immigrant visa petitions who have “aged out” from green card eligibility, even applying the CSPA. 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 described above existed for years in the USCIS’ regulations, which means that the BIA and the 9th Circuit ruled that the CSPA, enacted in 2002, was merely a statutory adoption of that regulation. The 9th Circuit basically deferred to the BIA’s interpretation in De Osorio, holding that Section 203(h) is ambiguous and that the BIA’s interpretation was not unreasonable.
The 5th Circuit took a decidedly different tact and held that the language of Section 203(h) was not ambiguous and that under its “plain meaning” the CSPA priority date retention provision applies to all petitions where derivative Beneficiaries may “age out,” not solely second-preference petitions. With a majority of the 9th Circuit Judges voting to rehear the case en banc, there is still a strong possibility that the 9th Circuit will reject its previous holding in De Osorio and adopt the better reasoned interpretation of the US Court of Appeals for the 5th Circuit soon.
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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.
