Setting the stage for a probable Supreme Court showdown, the US Courts of Appeals for the 9th Circuit and 5th Circuit each issued published opinions addressing the same issue within one week of each other and came down on polar opposite sides.  The 5th Circuit, in Khalid v. Holder, and the 9th Circuit in De Osorio et. al. v. Holder, were called upon to answer whether the Board of Immigration Appeals’ (BIA) interpretation of Immigration & Nationality Act (“INA”) section 203(h) in Matter of Wang, which disallowed the retention of visa priority dates for most derivative beneficiary’s of family-based petitions who had “aged out,” was correct.  Surprisingly, the 9th Circuit, which is generally known for taking a somewhat liberal stance in interpreting immigration legislation, ruled that the BIA’s restrictive reading did not run afoul of the statute, while the 5th Circuit shot down Matter of Wang, restoring hope to thousands of individuals and families who stand to benefit by the 5th Circuit’s interpretation.

At issue in both cases is the treatment of  derivative beneficiary sons and daughters of immigrant visa petitions who have “aged out” from green card eligibility, even applying the “Child Status Protection Act.” (CSPA)  Under the CSPA, the age of these beneficiaries is deemed to be their biological age on the date a visa becomes available to them, less the length of time that the I-130 or I-140 visa petition was pending between filing and approval with the USCIS.  The critical provision at issue in these cases is Section 203(h)(3), which, assuming a son or daughter is deemed to be over the age of 21 at the time their parents adjustment of status per the CPSA formula, states that “[t]he 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 position.”

Prior to Matter of Wang, the BIA had issued an unpublished decision, In re: Garcia, which held that an aged-out derivative Beneficiary on a family based third preference petition became the beneficiary of a family-second preference visa petition vis a vis her parent who had adjusted status, but retained the original priority date on the third preference petition that had been filed on behalf of her parent.  Under this interpretation, the “aged out child” avoids being placed at the back of the line for second-preference petitions and can immigrate or adjust status fairly quickly, relying on the original priority date on his parent’s petition.  In Matter of Wang, the BIA reversed itself and held that the “priority date retention” provision of INA §203(h) only applies to derivative beneficiaries of Second preference petitions, which is limited to the son or daughter of a single son or daughter of a green card holding parent.

The priority date retention for the situation described above existed for years in the USCIS’ regulations, which means that the BIA and the 9th Circuit ruled that the CSPA, enacted in 2002, was merely a statutory adoption of that regulation.  The 9th Circuit basically deferred to the BIA’s interpretation in De Osorio, holding that Section 203(h) is ambiguous and that the BIA’s  interpretation was not unreasonable.

The 5th Circuit took a decidedly different tact and held that the language of Section 203(h) was not ambiguous and that under its “plain meaning” the CSPA priority date retention provision applies to all petitions where derivative Beneficiaries may “age out,” not solely second-preference petitions.  As such, we are now faced with a “split” between two of the US Courts of Appeals, which renders these cases ripe for US Supreme Court review, unless the losing party in one of the cases seeks rehearing at the Court of Appeals and either decision is vacated. Stay tuned.

***Daniel P. Hanlon has been practicing Immigration and Nationality Law exclusively since his admission to the California State Bar in 1993. Mr. Hanlon is the founder of Hanlon Law Group, a P.C. He has argued many important immigration appeals before the United States Court of Appeals for the Ninth Circuit, and successfully challenged INS rulings in the United States District Court for the Central District of California. Mr. Hanlon’s experience spans several years, and covers a broad range of immigrant and nonimmigrant visa petitions, including those for working professionals, multi-national managers, treaty-traders, investors, athletes and entertainers. Mr. Hanlon also has vast experience in all family-based Petitions and
in labor certification applications under both Department of Labor-supervised recruitment and Reduction in Recruitment methods. Over the past several years, Mr. Hanlon has tried thousands of cases in Immigration Court involving Requests for Asylum in the United States, Cancellation of Removal, and Waivers of Grounds of Removability.  Mr. Hanlon graduated “With Distinction”  from the University of Michigan at Ann Arbor in April 1988, with a Bachelor of Arts degree in English. In May 1993, Mr. Hanlon graduated from Loyola Law School in Los Angeles.  He is a member of the American Immigration Lawyers Association, of which he sits on the Investors Committee. Mr. Hanlon has also appeared as a speaker before the Los Angeles County Bar Association, Immigration Section, on the 1996 immigration law amendments.  Hanlon Law Group, P.C. is headquartered at 225 S. Lake Avenue, Suite 1100, Pasadena, CA 91101, tel: (626) 585-8005, fax: (626) 585-8595, website:, email: ■