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Automatic Conversion and Retention of Priority Date for Aged-Out Derivatives: Circuit Courts Only Add to the Confusion

By Charles Wheeler

The most ambiguous and hotly contested provision in the Child Status Protection Act (CSPA) concerns the status of derivative beneficiaries after they age out.  The relevant provision, codified in INA § 203(h)(3), reads as follows:

RETENTION OF PRIORITY DATE—If the age of an alien is determined under [INA §203(h)(1)] to be 21 years of age or older for the purposes of [INA §§203(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.

In the preceding sections, 203(h)(1) sets forth the CSPA age-reducing formula for determining whether an alien has aged out. Section 203(h)(2) defines the petitions covered by 203(h)(1) and includes F-2A beneficiaries and derivative beneficiaries in all family- and employment-based petitions, as well as diversity immigrants.

The INS/USCIS, Department of State, and the Executive Office for Immigration Review have been battling practitioners on the proper interpretation of section 203(h)(3) almost from the date the CSPA was implemented.  And a lot rides on the outcome.  Thousands of children who are now over 21 using their CSPA age, but who were once derivative beneficiaries in one of the family-based categories, either are or are not eligible to immigrate immediately upon the principal beneficiary’s becoming an LPR and filing a new petition in their behalf.

Although relatively straightforward on its face, the language in 203(h)(3) has managed to confound the Board of Immigration Appeals and now the federal circuit courts.  Upon further analysis, it reads like a riddle subject to multiple interpretations – a legal Rubik’s Cube of possible meanings – each one containing some flawed reasoning. Does the word “petition” relate to all petitions covered in 203(h)(2) or does it apply only those in the F-2A category?  If it applies to all derivatives, what category do they convert to when they age out and when does this conversion take place?  If it applies to all derivatives, does this really mean that they retain the priority date filed on behalf of their parent years earlier, and thus will be current upon the parent’s filing a new petition in their behalf? Does it matter what Congress intended when it passed this provision, or are the words plain and unambiguous on their face?  If this provision applies only to derivatives in the F-2A category, does this “automatic” conversion necessitate the filing of a second I-130 petition on the child’s behalf? These are the questions the appellate agency and federal courts grappled with as they came to differing results using varying approaches.

When an LPR parent petitions for an unmarried child under 21 and that child ages out of the second-preference F-2A category, after taking into account the CSPA’s age-out protections, the child automatically converts to the F-2B category. If that child was not a direct beneficiary but a derivative in the F-2A category, and then ages out, the child loses derivative status. The USCIS’s current policy is that the LPR parent must file a separate I-130 on the child’s behalf. The child converts from the F-2A category to the F-2B category upon the LPR parent’s filing this second petition, and the child is able to retain the original priority date that was obtained for the first I-130. 8 CFR § 204.2(a)(4).

Example. Dinah, an LPR, filed an I-130 petition for her husband, Carlos, on April 30, 2001. She named her daughter, Maria, on the I-130 petition. When the F-2A petition became current, Carlos adjusted status under INA §245(i). Maria had turned 24 and had aged out of derivative status, even after applying CSPA principles. Dinah will need to file a new I-130 on Maria’s behalf, since Maria is no longer a derivative. Maria will convert to the F-2B category and will be able to retain the priority date from the first I-130 petition filed on behalf of Carlos.

According to the USCIS, that same principle does not apply to derivative children who age out, after applying the CSPA, in the first-, third-, or fourth-preference categories.  Those children will have to wait until their parent, the principal beneficiary, becomes an LPR and files a new I-130 petition on their behalf. This would be a second-preference F-2B category petition.  But the child does not get to retain the original priority date.

During a ten-week period ending on September 8, 2011, three circuit courts weighed in.  The first found that the language in the statutory provision was unambiguous and thus the court was free to ignore agency interpretation.  But it held that the automatic conversion and retention of priority date principle applied only to children in the F-2A category and not to all other beneficiaries.  Li v. Renaud, 2011 U.S. App. LEXIS 13357 (2nd Cir. N.Y. June 30, 2011). The second court found the language ambiguous and deferred to agency interpretation, thus resulting in a similar outcome albeit from a different direction. Cuellar de Osorio v. Mayorkas, 2011 U.S. App. LEXIS 18289 (9th Cir. Cal. Sept. 2, 2011).  But the third court, like the first one, found the language to be unambiguous, only it came to the opposite conclusion – the provision applied to all derivatives, not just those in the F-2A category. Khalid v. Holder, 2011 U.S. App. LEXIS 18622 (5th Cir. Sept. 8, 2011). It is presumed that the government and/or the petitioners will be seeking further review of these decisions, through petitions for rehearing en banc, stays, or a writ of certiorari to the U.S. Supreme Court. This article will try to shed some light on these different holdings and let practitioners know the current interpretation in their jurisdiction.

This CSPA provision was first interpreted by the INS shortly after the law was passed; the agency’s unofficial position was that it narrowly applied only to derivative beneficiaries in the F-2A category. But this interpretation was put into question by an unpublished decision from the BIA, which held that derivative children in other family-based categories – including the third and fourth preference – must also covert to the F-2B category upon the principal beneficiary’s immigrating and filing a new petition on their behalf.  And the aged-out children then retain the original priority date for the petition filed on behalf of the principal beneficiary. Matter of Garcia, 2006 WL 2183654 (BIA July 16, 2006).  The BIA reasoned that the Aappropriate category@ must be viewed from the perspective of the principal beneficiary, i.e. the aged-out derivative becomes the unmarried child over 21 of an LPR.

The USCIS did not adopt this case holding or interpretation, however.  In fact, at a USCIS National Stakeholder meeting on May 27, 2008, the agency finally stated its official position that the conversion and retention language of INA § 203(h)(3) applied only to derivatives who age out of the F-2A category.  At about that time the Attorney General certified a case similar to the facts in Garcia to the BIA for a more definitive ruling. One year later, the BIA, in a published decision, adopted the government’s position and held that the statute applies only to derivative children in the F-2A category. Matter of Wang, 25 I&N Dec. 28 (BIA 2009). It reviewed the legislative history and found no Congressional language supporting such a finding.  It also examined the term Aconversion@ and concluded that it should not be expanded to cover derivatives in the F-1, F-3, and F-4 categories who age out, since there is no Aappropriate category@ for these persons.  It chose to limit the term Aretention of priority date@ to situations where the same petitioner files a new petition for the same beneficiary.

In both the BIA and the later circuit court decisions, the underlying facts were essentially the same.  A U.S. citizen had petitioned either for a married sibling in the fourth preference category or a married son/daughter in the third preference category.  The principal beneficiary had a child who later aged out of derivative status.  After the principal beneficiary became an LPR, he or she filed a separate petition for the child in the F-2B category and requested retention of the original priority date. All three circuit courts applied a well-established, two-part analysis set forth in a seminal Supreme Court decision, Chevron U.S.A, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The first part under the Chevron test is to determine whether the statutory language is clear on its face after applying traditional rules of statutory construction.  If Congress has spoken directly to the precise question at issue, then that is the end of the analysis, regardless of the agency’s interpretation.  If, on the other hand, the language or Congressional intent is ambiguous, a reviewing court proceeds to the second part of the test, which is to defer to the agency’s interpretation, assuming it is reasonable.

The Second Circuit, which covers the states of Connecticut, New York, and Vermont, held that the statutory language was plain on its face.  It bought the USCIS’s argument that “conversion” occurs only when the category changes, not the petitioner.  There is no ‘appropriate category” for the derivatives to automatically convert to, since that requires the filing of a second petition by a different petitioner. Therefore, according to the court, Congress must have meant to limit 204(h)(3) to the aged-out F-2A derivatives.  It decided that section 203(h)(3) “does not entitle an alien to retain the priority date of an aged-out family preference petition if the aged-out family preference cannot be ‘converted to [an] appropriate category.’” The court did not reach the issue of whether the BIA’s decision in Matter of Wang was reasonable since it limited its analysis to the statutory language.

In contrast, two months later the Ninth Circuit Court of Appeals examined the same statutory language and found them to be ambiguous.  The Ninth Circuit encompasses the western states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. The court found that if it interpreted the language literally, i.e., that “petition” applies both to F-2A and all other preference categories, it would lead to “unreasonable or impracticable results.” The court had difficulty with the term “automatically,” which modifies the conversion to the appropriate category after the derivative aged out.  Since any conversion to the F-2B category for beneficiaries in the third or fourth preference requires the principal beneficiary’s becoming an LPR and then filing a subsequent petition, it could not be described as automatic.  If there is no automatic conversion for this group of derivatives, then there can be no retention of priority date, since the two actions do not operate independently.  Finding the terms to be ambiguous, the court turned to the legislative intent, which it found to be inconclusive. The court then looked at how the agency and the BIA had interpreted the provision and found the holding in Matter of Wang to be reasonable.

The Ninth Circuit also distinguished the long-standing regulation, 8 CFR § 204.2(a)(4), which allowed for retention of the priority date for derivatives in the F-2A category when they aged out and the same petitioner filed a new I-130, from the new INA § 203(h)(3), which calls for automatic conversion and retention. Practitioners had argued that limiting this CSPA provision to beneficiaries in the F-2A category would affect no significant change and make the statutory language unnecessary. But the court explained that the CSPA provision made this conversion from the F-2A to the F-2B category automatic, implying that no second I-130 petition need be filed.  In another part of the decision, the court stated that section 203(h)(3) allows the F-2A beneficiary “to move to a different category as an adult without having to file a new petition and get a new priority date.”  This is precisely the argument advanced by counsel representing the government in this case when they distinguished the pre-existing regulation from the statutory provision: these aged-out derivatives in the F-2A category do not require a new petition to be filed in their behalf in order to convert to the F-2B category and thus they can now save on filing fees. The Fifth Circuit pointed out that the Second Circuit implied the same interpretation (“the only difference between the regulation and the Li court’s reading of subsection (h)(3) is that the statute would relieve the [LPR petitioner] of the burden of filing a new petition, since the conversion would now be automatic.”).  While the USCIS does not currently agree with this interpretation of 203(h)(3), and the National Benefits Center will still require the filing of a second petition, those residing in the states covered by the Ninth and Second Circuit decisions should consider making this argument.

Had the Fifth Circuit – which is considered the most conservative of the three – gone along with the Second and Ninth Circuit, this controversy would probably have been put to rest.  But the Fifth Circuit took a more detailed examination of the statutory language and looked at all three parts of section 203(h) as a whole. Like the Ninth Circuit, it concluded that the word “petition” in 203(h)(3) referred to petitions filed on behalf of beneficiaries in the F-2A as well as all other categories. It was given the same meaning as the word “petition” in 203(h)(1), which “applies to a child of an LPR, or a child who is a derivative beneficiary of any family, employment, or diversity visa petition.” Unlike the Ninth Circuit, or the BIA in Matter of Wang, the Fifth Circuit found no ambiguity.  “In light of the interrelated nature of the of [(h)(1), (h)(2), and (h)(3)], reading the subsection as a whole confirms that Congress intended (h)(3) to  apply to any alien who “aged out” under the formula in (h)(1) with respect to the universe of petitions described in (h)(2).” 

The Fifth Circuit, which covers the states of Louisiana, Mississippi, and Texas, refused to read in some congressional intent or limit (h)(3) to derivatives in the F-2A category since the language of the statute was plain on its face.  It agreed that this interpretation caused a break with past practices regarding the terms conversion and retention, but the clarity of the statutory words compelled such an expansion (“it seems unlikely that Congress would exclude an entire class of derivative beneficiaries from subsection (h)(3)’s benefits by silent implication based on the unwritten assumption that the petitioner must remain the same.”). And it answered the question of what category the aged-out derivative in the third or fourth preference automatically converted to by going back to the BIA’s reasoning in Matter of Garcia.  The automatic conversion does not happen when the derivative turns 21; it happens when the visa becomes available, which is when section (h)(1)’s age-adjusting formula is applied.  At that point, assuming it has been determined that the derivative has aged out, the principal beneficiary is current and the appropriate category is looked at with respect to the principal beneficiary.  The aged-out derivative then becomes the unmarried child over 21 of an LPR. The Fifth Circuit was thus able to weave together all the language used in 203(h) without having to read out various portions, carve out exceptions, rely on past agency practices, or imply congressional intent when none was specifically stated.

Conclusion.  Borrowing from that time-worn phrase, section 203(h)(3) might just be a riddle wrapped in a mystery inside an enigma. Resolution of this issue will have to await further federal appellate court decisions, probably through en banc panels in the circuits that have ruled so far.  If a split in the circuits continues, this may be resolved only at the Supreme Court level.  In the meantime, unless a stay is granted, aged-out derivatives residing in the Fifth Circuit should be eligible for relief comparable to that afforded the plaintiff in the Khalid decision. The Fifth Circuit decision is attractive and compelling in its logic, simplicity, and refusal to read in congressional intent when the statutory language is plain and clear.  With a Supreme Court packed with strict constructionists, it is possible that such an approach may ultimately succeed.