The Child Status Protection Act (CSPA) was signed into law by President George Bush on August 6, 2002. CSPA protects children who would otherwise "age out" by turning 21 before being eligible to adjust status or process for an immigrant visa. CSPA protects both children who are derivative beneficiaries of petitions filed for a parent and those who are the direct beneficiaries of petitions filed by a parent. CSPA subtracts from the child's age any period that a petition was pending a processing delay with USCIS and also allows a child to retain his own or his parent's priority date and use it in a different preference category if the child "ages out" before being able to immigrate.

The law defines child for immigration purposes as an unmarried person under age 21.  8 USC 1153(d).  Children under age 21 may be the direct beneficiary of a petition filed by a US citizen or permanent resident parent, or a derivative beneficiary as the dependent child of a parent who is the beneficiary himself of a petition filed by the parent's sibling or parent.  In both cases, the child, as defined by law, must be under age 21 to be eligible to immigrate -- regardless of whether by adjustment of status inside of the United States, or consular processing outside of the United States.

Recalculating Age Based on USCIS Delay

CSPA provides the following important benefits for both direct and derivative beneficiaries of immigrant petitions:

• For direct beneficiaries of a petition by a permanent resident parent, determine the beneficiary's age at the time a visa number becomes available and subtract the period that the immigrant visa petition was pending.  If with the delay subtracted the child is under age 21, then he is eligible to adjust or consular process, if he is over age 21, then he is not.
   
• For derivative beneficiaries of an I-130 petition filed by a grandparent, uncle or aunt for the child's parent, or an I-140 petition filed by an employer for the child's parent, the same rule as above applies.
   
• To secure CSPA benefits the child beneficiary must "seek to acquire" permanent residence status within one year of visa availability and the child can meet this requirement by filing a DS-230 application for an immigrant visa, or an I-485 application to adjust status ("visa availability" occurs when the child's priority date becomes current).
   
• CSPA does not protect children who do not file to adjust status within one year of visa availability. For example, if the parent of a child is the beneficiary of an I-140 approval and the priority date was current 18 months earlier and the parent and child now file to adjust status, CSPA will not protect the child if he reaches age 21 before USCIS approves his I-485 and in that case the attorney should make every effort to expedite the case.  If USCIS does not approve the case before the child's 21st birthday, the child will no longer be eligible to adjust status as a derivative beneficiary.

Priority Date Retention
and Automatic Conversion

CSPA allows a child who reaches age 21 before a visa number is available to retain the priority date associated with the earlier petition and to automatically convert to a valid adult visa category.  8 USC 1153(h)(3).  This provision applies only to the direct beneficiaries of a visa petition.  Courts are in disagreement about whether CSPA allows priority date retention and automatic conversion for derivative beneficiaries.

The Circuit Split - Does Priority Date Retention and Automatic Conversion Apply to Derivative Beneficiaries?

A direct beneficiary is the person for whom the visa petition was filed.  A derivative beneficiary is that direct beneficiary's spouse or child for whom a separate visa petition was not filed.

A question exists as to whether automatic conversion and priority date retention applies to the derivative beneficiary of an F3 petition (for married sons or daughters of US citizens), or an F4 petition (for siblings of US citizens).

The Board of Immigration Appeals held that automatic conversion and priority date retention do not apply to derivative beneficiaries.  Matter of Wang, 25 I.&N. Dec. 28 (BIA 2009).

Then in September 2011, the Ninth Circuit Court of Appeals held that automatic conversion and priority date retention did not apply to derivative beneficiaries of F3 and F4 petitions. De Osorio v. Mayorkas I, No. 09-56785 (9th Cir. 09/02/2011), withdrawn by 677 F.3d 921, 921-22 (9th Cir. 2012).  The petitioners in that case then petitioned for rehearing en banc.  US courts of appeal decide cases in three judge panels and if a party believes the panel's decision was in error, the party may petition for a panel consisting of all circuit court judges in that circuit to reconsider the decision. The circuit court may agree or refuse to rehear a case en banc.  Because the Ninth Circuit is so large, it has special rules regarding en banc hearings and these include that such cases are heard by eleven randomly selected judges rather than by all of the judges who sit on the circuit.

The Ninth Circuit agreed to rehear De Osorio and issued a new opinion on September 26, 2012.  De Osorio v. Mayorkas II, No. 09-56846 (09/26/2012).  After rehearing, the Ninth Circuit decided in a close 6-5 decision that the automatic conversion and retention provisions do apply to derivative beneficiaries.

This creates some obvious problems because a derivative beneficiary is not the beneficiary of any petition and the relevant petitioner is the derivative beneficiary's grandparent, uncle, or aunt - relatives who may not directly petition for the derivative beneficiary.  Additionally, "automatic conversion" customarily occurs when the child reaches age 21.  But under the Ninth Circuit's new rule, the conversion will have to occur only if and when the primary beneficiary becomes a permanent resident because there is simply no other person who may petition for the derivative beneficiary.

A core issue in the circuit court cases considering this question is what standard of review is the BIA's decision in Matter of Wang entitled to. The Supreme Court case that sets out the standard for reviewing federal agency decisions is Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).  The court in Chevron held that:

1. If the statute the agency decision is interpreting is unambiguous, the agency's decision receives no deference and the court is to interpret the statute.  
2. If the statute is ambiguous, then the court must ask whether the agency's decision is a permissible construction or interpretation of the statute, if yes, the federal court should defer to the agency decision, and if not, the federal court should try to interpret the statute.

A thorny question has been whether the Child Status Protection Act's discssion of automatic conversion and priority date retention as it relates to derivative beneficiaries is ambiguous.  If yes, the BIA's decision in Matter of Wang is entitled to the circuit court's deference and if it is a permissible construction of the statute's possible meaning, the federal court is supposed to leave the agency's decision undisturbed.

Because the circuits are split on interpreting the meaning of this statute, perhaps this alone is evidence that the statute itself is ambiguous.  Not so fast the dissent wryly noted,

There is currently a circuit split over whether the existence of a circuit split is evidence of statutory ambiguity.

The other two circuits entertaining this question were the Second and Fifth.  The Second Circuit has jurisdiction over federal appeals from Connecticut, New York and Vermont.  And the Fifth Circuit has jurisdiction over federal appeals from Texas, Louisiana and Mississippi.

The Second Circuit Court of Appeals found that 8 USC 1153(h)(3) was not ambiguous, the BIA's decision in Matter of Wang was not entitled to Chevron deference and also decided that the CSPA does not allow derivative beneficiaries to enjoy automatic conversion and priority date retention.  Li v. Renaud, 10-2560-CV (2nd Cir. June 30, 2011).

The Fifth Circuit Court of Appeals decided that 8 USC 1153(h)(3) was not ambiguous, the BIA's decision in Matter of Wang was not entitled to Chevron deference and also decided that the CSPA does apply automatic conversion and priority date retention to derivative beneficiaries.  Khalid v. Holder, No. 10-60373, (5th Cir. September 8, 2011).  The government made a motion for rehearing en banc after losing this case and the Fifth Circuit denied the request on January 24, 2012.

Not only are the circuits in dispute over whether CSPA provides automatic conversion and priority date retention for derivative beneficiaries, they are in dispute over whether CSPA treats this question ambiguously.  The answer to that question powerfully affects the quantum of deference the circuits must give Matter of Wang under the Chevron two-step analysis.

This circuit dispute is likely to be resolved by the Supreme Court in the coming year or two.  The Supreme Court is responsible for ensuring uniform application of federal law nationwide and may take an interest in resolving this dispute.  Until then, if you live in a state within the jurisdiction of the Ninth Circuit or Fifth Circuit Courts of Appeals, derivative beneficiaries can benefit for now from automatic conversion and priority date retention.  If you live outside of those two circuits, Matter of Wong likely controls, and petitioners living within the jurisdiction of the Second Circuit Court of Appeals certainly won't be able to win automatic conversion and priority date retention for their derivative beneficiaries.

The case that gave rise to this flurry of paper was Matter of Wong.

In Matter of Wang, a US citizen filed a petition for her Chinese brother in 1992.  The Chinese beneficiary's wife and three children were listed as derivative beneficiaries on the visa petition.  By the time the visa petition's priority date was current, the eldest daughter of the Chinese beneficiary was over age 21.  Upon adjusting status, her father as a permanent resident filed a petition for her and requested that under the CSPA, USCIS retain the earlier priority date of December 28, 1992.  USCIS refused to do so.  The BIA found that CSPA benefits only children who are direct beneficiaries of a visa petition and not those who are derivative beneficiaries.  According to Wang, derivative beneficiaries who turn age 21 before their priority date is current may not retain the earlier priority date from the petition that listed them as derivative beneficiaries.

8 USC 1101(b)(1) entitles a child under the age of 21 to the same immigration status as a parent who is the beneficiary of an I-130 immigrant petition based on a family relationship or an I-140 petition based on employment.  This is the case only where the spouse or child is not otherwise entitled to immigrant status:

A spouse or child . . . shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a) . . . of this section, 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(h)(3) applies to derivative beneficiaries De Osorio v. Mayorkas, No. 09-56846 (09/26/2012)
	INA 203(h)(3) applies to derivative beneficiaries Khalid v. Holder, No. 10-60373, (5th Cir. 09/08/ 2011)
	INA 203(h)(3) does not apply to derivative beneficiaries Li v. Renaud, 10-2560-CV (2nd Cir. 06/30/2011)

The direct beneficiary family based categories listed below correspond to the numbered paragraphs at 8 USC 1153(a):

The law before CSPA provided for automatic conversion of preference categories and the retention of priority dates under certain circumstances and those statutes remain valid today.  The law before CSPA allowed a child derivative beneficiary of a second-preference spousal petition to retain his priority date if he reached age 21 before his parent was issued a visa.  8 CFR 204.2(a)(4).  In such a case, the child (now over age 21) requires a separate petition, but may retain the priority date if the subsequent petition is filed by the same petitioner.

The law before CSPA also allowed for automatic conversion of a second preference category for a son or daughter of a permanent resident (F2B) is "automatically" converted to a first preference category petition (F1) when petitioner naturalizes.  9 CFR 204.2(i).  These benefits are still valid law and were not changed by CSPA.

Section 6 of CSPA provides for the automatic transfer of preference categories when the parent of an unmarried son or daughter naturalizes, but also allows the unmarried son or daughter to request that the automatic transfer not occur.  USCIS will accept this type of request by a signed letter.  (See USCIS CSPA Memorandum 2, 02/14/2003).

CSPA Memos and Cases
	USCIS CSPA Memo 1, 09/20/2002
	USCIS CSPA Memo 2, 02/14/2003
	AILF Practice Advisory on CSPA by Mary A. Kenney, 03/08/2004
	USCIS Memo on CSPA and Children of Asylees and Refugees, 08/17/2004
	USCIS Memo: Revised Guidance for the Child Status Protection Act (CSPA), 05/06/2008 (This memo supersedes the USCIS CSPA Memos 1 and 2 above)
	Matter of Wang, 25 I.&N. Dec. 28 (BIA 2009)
	De Osorio v. Mayorkas I, No. 09-56785 (9th Cir. 09/02/2011)
	De Osorio v. Mayorkas II, No. 09-56846 (9th Cir. 09/26/2012)
	Khalid v. Holder, No. 10-60373, (5th Cir. 09/08/2011)
	Li v. Renaud, 10-2560-CV (2nd Cir. 06/30/2011)