Revised CSPA Flow Chart for § 203(h) of the Immigration ...

[Pages:3]Revised CSPA Flow Chart for ? 203(h) of the Immigration and Nationality Act

Three years after the Board of Immigration Appeals (BIA) badly mangled the Child Status Protection Act (CSPA) section pertaining to over-21-year-old derivative beneficiaries of family preference petitions, ? 203(h),1 by finding the provision ambiguous,2 three Circuit Courts of Appeal have found the same statutory provision clear and unambiguous. Two of the courts approved a second petition approach, but both suggested that the U.S. Citizenship and Immigration Services (USCIS) needs to work out an adequate procedure to give effect to the statute.3 The other court found the statute unambiguous but reached a similar result as Wang because it rejected the two-petition approach.4 Notably, the parties did not present, and the court did not consider, any other alternative.5

A second family preference category F2B petition filed by the principal alien after the principal has achieved permanent resident status will now work for over-21 derivative beneficiaries in the Fifth and Ninth Circuits. However, in all jurisdictions, continued eligibility of over-21 derivatives on the original petition filed for their principal alien parent finds support in statutes and regulations now in existence.6 This means that the otherwise "aged out" son or daughter can nevertheless accompany the principal alien or follow to join on the same petition without having to wait for the conditions that would permit the filing of a second, F2B petition.

Here is an update to the CSPA Flow Chart I first published last year.7 This revision correctly reflects the role of the one-year, "sought to acquire" requirement contained in subparagraph (1)(A) of the statute. This requirement applies only to the determination of whether the derivative qualifies as a "child" under the age calculation scheme set forth in paragraph (1). It does not apply to the over-21 population governed by paragraph (3), the operative paragraph of the section. Thus both those derivatives computed to be over-21 and those who would be under-21 but for failing to meet the "sought to acquire" condition end up falling under paragraph (3). This paragraph preserves their ability to immigrate with or by following to join their parent by automatic conversion to "CSPAprotected" derivative status.8

This is a complicated area of immigration law. Most of the current government adjudicators are unfamiliar with this emerging approach and may reject it. But this approach is gaining acceptance, with examples in immigration court, consular practice, and USCIS. In addition to the two-petition approach, the decisions of the Fifth and Ninth Circuits should facilitate broader acceptance of this original-petition approach as well, for it is quicker, easier, cheaper, and requires no additional regulations.

For further information regarding CSPA derivative petitions, you may use the "Contact Us" page of our website or send an email to visas@.

For further reading, four CSPA ? 203(h) articles are available on the Publications page under the "Newsroom" tab of our website, .

Here is the flow chart:

Endnotes:

1. Immigration and Nationality Act (INA) ? 203(h) [8 U.S.C. ? 1153(h)] provides as follows:

(1) In general For purposes of subsections (a)(2)(A) and (d), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using--

(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d), the date on which an immigrant visa number became available for the alien's parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability; reduced by

(B) the number of days in the period during which the applicable petition described in paragraph (2) was pending. (2) Petitions described The petition described in this paragraph is--

(A) with respect to a relationship described in subsection (a)(2)(A), a petition filed under section 204 for classification of an alien child under subsection (a)(2)(A); or

(B) with respect to an alien child who is a derivative beneficiary under subsection (d), a petition filed under section 204 for classification of the alien's parent under subsection (a), (b), or (c). (3) Retention of priority date.--If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the 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 petition.

2. Matter of Wang, 25 I. & N. Dec. 28 (BIA 2009).

3. De Osorio v. Mayorkas, 695 F.3d 1003, 2012 U.S. App. LEXIS 20177 (9th Cir. 2012) (en banc);

Khalid v. Holder, 655 F.3d 363 (5th Cir. 2011).

4. Li v. Renaud, 654 F.3d 376 (2d Cir. 2011). For an analysis of the issues facing the Li court, see David

Froman on Current Litigation and How to Avoid Matter of Wang, 25 I. & N. Dec. 28 (BIA 2009), for "Aged Out" Derivative Beneficiaries Under the Child Status Protection Act (CSPA): An Emerging Perspective, 2011 Emerging Issues 5696 (LexisNexis 2011).

5. Id. at 385. ("Cen [the beneficiary son of Li] has not specified a category that would be appropriate.")

6. See, e.g., INA ? 203(d) [8 U.S. C. ? 1153(d)], which provides as follows:

A spouse or child as defined in subparagraph (A), (B), (C), (D), or (E) of 101(b)(1) shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c), be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join the spouse or parent. INA ?? 203(a), (b), & (c) referenced here provide, respectively, for family preference, employment preference, and diversity visa immigrants. See also 9 Foreign Affairs Manual (FAM) 40.1 N.7.1 and 9 FAM 42.42 N.11, which provide for the immigration of over-21-year-old derivatives, without the necessity of a second petition. These references are explained in more detail in D. Froman, Properly Applying INA ?203(h) of the Child Status Protection Act: When the "Appropriate Category" Remains the Same Category, 15 BENDER'S IMMIGR. BULL. 1145 (Aug. 15, 2010).

7. D. Froman, "USCIS Gives De Facto Acceptance to Emerging View of CSPA Provisions in INA

?203(h)(3)," Immigration Practice Pointers 105, 109 (AILA 2011?12 Ed.).

8. David Froman on De Osorio v. Mayorkas, 2012 U.S. App. LEXIS 20177 (9th Cir. Sept. 26, 2012) (en

banc): Suggestions for Implementing Court's Ruling Upholding Child Status Protection Act Coverage for Over-Twenty-One Derivative Beneficiaries: An Emerging Perspective, 2012 Emerging Issues 6736 at 10-14 (LexisNexis 2012).

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