The Supreme Court has now weighed in and answered one of the last remaining questions regarding the Child Status Protection Act (CSPA): do derivative children who age out before the principal beneficiary immigrates retain the original priority date when their parent becomes an LPR and files a new petition on their behalf in the F-2B category? The answer has been no, based on a Board of Immigration Appeals decision, Matter of Wang, 25 I&N Dec. 28 (BIA 2009). In that case the BIA ruled that there is no appropriate category to which aged-out derivatives other than F-2As could “automatically convert.” But the Second and Ninth Circuit Courts of Appeal ruled differently, relying on a more generous interpretation of the statutory language and perceived congressional intent. In a 5-4 decision issued today, the Supreme Court reversed the Ninth Circuit and found the language of the statute ambiguous, thus deferring to the agency’s interpretation of this provision. It held that INA § 203(h)(3) allows for the different treatment of aged-out derivatives depending on their preference category. In accordance with the BIA decision and the agency interpretation, only F-2A derivatives – and not those in any other family-based preference category – convert to the F-2B category when they age out. Scialabba v. Cuellar de Osorio, 573 U.S. __ (2014).
The USCIS’s interpretation only allows the unmarried derivative children of LPRs to convert to the F-2B category upon turning 21. They automatically convert and do not require the filing of a second petition. Should the LPR petitioner file a second petition, the child would retain the original priority date. For all other aged-out derivatives, when the parent immigrates and files a new I-130 petition, there is no retention of the original priority date.
To hear a thorough explanation of the CSPA and an analysis of the Court’s recent decision, sign up for CLINIC’s June 19th webinar on this topic.