By Charles Wheeler
The USCIS issued a memo on November 21, 2013 clarifying its interpretation of an important provision of the Child Status Protection Act (CSPA). That provision is codified in INA § 203(h)(3) and relates to retention of priority dates for aged-out derivatives. The government’s position is that this section applies only to derivative children who age out of the F-2A and convert to the F-2B category upon turning 21. The interpretation of this section of the CSPA is currently before the U.S. Supreme Court and will be decided sometime in 2014. Until the Court reaches a decision, the USCIS will hold in abeyance any applications for adjustment of status from aged-out derivatives in the third or fourth preference who are seeking retention of the original priority date after their parent immigrates and files a new I-130 for them in the F-2B category.
The memo also addresses the issue of how to treat the derivatives in the F-2A category whose “petition shall automatically be converted to the appropriate category and … shall retain the original priority date issued upon receipt of the original petition.” The USCIS is implementing the BIA’s decision in Matter of Wang, 25 I&N Dec. 28 (BIA 2009), which held that the derivative child automatically converted to the F-2B category upon turning 21 and did not require the filing of a second I-130 petition. If the child is now current in the F-2B category and is otherwise eligible for adjustment of status, the child may file an I-485 application without having to file a separate I-130 petition.
This marks a change in the government’s position, which up until now had been that the LPR petitioning parent needed to file a second I-130 for the child. Should the parent file a separate petition for the child, the USCIS will retain the original priority date issued upon the LPR parent’s filing for the spouse. Since this new memo only addresses those who are seeking adjustment of status, it is unclear whether aged-out derivatives from the F-2A category may seek an immigrant visa from the Department of State without having filed a second I-130 petition.