** This is an update to the blog entry on June 26, 2013. For more background, please see that entry. **
On June 9, 2014, the Supreme Court issued its decision in the case of Scialabba v. Cuellar de Osorio, Case No. 12-930, available at http://www.supremecourt.gov/opinions/13pdf/12-930_3d46.pdf.
This case involved the question of what happens to children who are included in their parent’s immigration petition when it is first filed but who later turn 21 years old as the case proceeds. Specifically, the case involved the U.S. Citizenship and Immigration Services (USCIS)’s interpretation of Section 203(h)(3) of the Immigration and Nationality Act, 8 USC 1153(h)(3), also called the “Automatic Conversion” provision of the Child Status Protection Act (CSPA).
USCIS’s position is that the Automatic Conversion provision only helps children of Legal Permanent Residents. Those children (unmarried and under 21 years old) are included as derivative beneficiaries in any immigration petition filed by one Legal Permanent Resident parent for the other. These petitions fall in the “Second Preference Category.” Their wait in line is determined by their “priority date,” or the date that USCIS received the petition. Once the child turns 21 years old, however, he/she needs a separate, individual petition to be filed by the petitioning parent directly for the child.
USCIS interprets the Automatic Conversion provision to apply only in this limited circumstance in order to allow the child’s second petition (which will still fall under the Second Preference Category) to retain the same priority date as the first one.
Previously, some federal circuit courts, including the 9th Circuit and the 5th Circuit, had held that the Automatic Conversion provision would also apply to children who are derivative beneficiaries of petitions in other immigration categories.
In the case of Scialabba v. Cuellar de Osorio, the Supreme Court resolves this conflict. They hold that the Automatic Conversion provision is ambiguous and that they will defer to USCIS’s interpretation of that provision, which they find to be reasonable.
Unfortunately, this means that the Automatic Conversion does not provide any help to derivative children in non-Second Preference immigration categories. Once those children “age out” of their parents’ cases, a new petition may be filed for them, but they will not be able to retain the same priority date as the first petition. At least, this will be the case unless and until USCIS changes its interpretation of the Automatic Conversion clause of the CSPA.
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