Revised CSPA Flow Chart for § 203(h) of the Immigration and Nationality Act

Three years after the Board of Immigration Appeals (BIA) badly mangled the Child Status Protection Act (CSPA) section pertaining to over-21-year-old derivative beneficiaries of family preference petitions, § 203(h),  by finding the provision ambiguous, three Circuit Courts of Appeal have found the same statutory provision clear and unambiguous.  Two of the courts approved a second petition approach, but both suggested that the U.S. Citizenship and Immigration Services (USCIS) needs to work out an adequate procedure to give effect to the statute.   The other court found the statute unambiguous but reached a similar result as Wang because it rejected the two-petition approach.  Notably, the parties did not present, and the court did not consider, any other alternative.

A second family preference category F2B petition filed by the principal alien after the principal has achieved permanent resident status will now work for over-21 derivative beneficiaries in the Fifth and Ninth Circuits.  However, in all jurisdictions, continued eligibility of over-21 derivatives on the original petition filed for their principal alien parent finds support in statutes and regulations now in existence.  This means that the otherwise “aged out” son or daughter can nevertheless accompany the principal alien or follow to join on the same petition without having to wait for the conditions that would permit the filing of a second, F2B petition.

Here is an update to the CSPA Flow Chart I first published last year.  This revision correctly reflects the role of the one-year, “sought to acquire” requirement contained in subparagraph (1)(A) of the statute.  This requirement applies only to the determination of whether the derivative qualifies as a “child” under the age calculation scheme set forth in paragraph (1).  It does not apply to the over-21 population governed by paragraph (3), the operative paragraph of the section.  Thus both those derivatives computed to be over-21 and those who would be under-21 but for failing to meet the “sought to acquire” condition end up falling under paragraph (3).  This paragraph preserves their ability to immigrate with or by following to join their parent by automatic conversion to “CSPA-protected” derivative status.

This is a complicated area of immigration law.  Most of the current government adjudicators are unfamiliar with this emerging approach and may reject it.  But this approach is gaining acceptance, with examples in immigration court, consular practice, and USCIS.  In addition to the two-petition approach, the decisions of the Fifth and Ninth Circuits should facilitate broader acceptance of this original-petition approach as well, for it is quicker, easier, cheaper, and requires no additional regulations.

Here is a link to the Revised CSPA Flow Chart:

For a footnoted version of this blogpost containing the revised CSPA Flow Chart click this link:

For further reading, four CSPA § 203(h) articles are available on our Publications page:

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