Last Wednesday, in De Osorio v. Mayorkas, the U.S. Court of Appeals for the 9th circuit joined the 5th circuit in ruling that the plain language of the Child Status Protection Act (CSPA) unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries of all family-based preference categories.
What does this mean?
Previously, the government took a restrictive view of CSPA with respect to automatic conversion and priority date retention. In its 2009 decision in Matter of Wang, BIA essentially ruled that automatic conversion and priority date retention would only apply to children who were direct beneficiaries or derivative beneficiaries of F2A petitions. Anyone else who “would have been” derivative child beneficiaries who aged out in the process while waiting for visa availability (eg. F3 petitions for married sons and daughters of U.S. citizens, F4 petitions for brothers and sisters of U.S. citizens) were left with no choice but to restart the process through a new qualifying petition, and go back to the end of the line…UNTIL NOW.
This recent CA9 decision is a significant victory for all those within its jurisdiction who were left behind by the restrictive interpretation of CSPA. This means that derivative beneficiaries of F3 (10-20 years wait) and F4 (11-23 years wait) petitions, who aged-out before their parents obtained permanent resident status, would now be able to retain their original priority dates.
In its decision, the court expressed confidence that “USCIS can develop a process for the F3 and F4 petitions of aged-out derivative beneficiaries to be automatically converted to F2B petitions, with new petitioners and new beneficiaries.” However, we have yet to see official guidance from the U.S. Citizenship and Immigration Services (USCIS). Moreover, USCIS may seek out the U.S. Supreme Court to review the 9th circuit’s decision, which will further delay the issuance of any guidance.
In the meantime, it may be worthwhile to start digging around for your parents’ old immigration documents in anticipation of formal USCIS guidance. You might be surprised when you see those priority dates in the 1980’s or 1990’s, when your U.S. citizen uncle, aunt or grandparents petitioned for your parents.
We’ll keep you posted!