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Thanksgiving and New USCIS Policy Memorandum

With Thanksgiving (and Hannukah) just days away, I am looking forward to a week filled with holiday fun, great food, and time spent with family. Thanksgiving is my favorite time of the year; a time to reflect and be grateful for the wonderful people -- clients, business partners, family -- who have contributed so much to my personal and professional success this past year. Next week I will take a short break to recharge my batteries and then head into the last lap of 2013 fully refreshed and ready for any and all challenges that come my way. In between working on my clients' cases and getting caught up on recent immigration case decisions and policy memoranda, I will also make time to sneak a peek at a football game or two on television.

Speaking of policy memoranda, a noteworthy one landed in my inbox this afternoon. Its the USCIS final policy memorandum (PM) offering guidance to the field on handling automatic conversion and priority date retention requests in family-based immigrant visa petitions affected by the U.S. Supreme Court's pending ruling in the case of Mayorkas v. Cuellar de Osorio. The issue in that case was whether children listed as derivative beneficiaries in an immigrant visa petition who aged out of eligibility for an immigrant visa because they turned 21 could retain their priority date under the Child Status Protection Act (CSPA) when sponsored under a new category for adults. The Ninth Circuit Court of Appeals held that the language of the CSPA clearly allows automatic conversion and priority date conversion in these cases. The Court refused to defer to the Board of Immigration Appeals precedent decision in Matter of Wang, 25 I.&N. Dec. 28 (BIA 2009) because the BIA's interpretation conflicted with the plain language of the CSPA.

I will have more to report on the PM as I digest it over the next several days. In the meantime, it is worth pointing out that USCIS continues to rely on Matter of Wang, stating in a footnote to the PM that the Ninth Circuit "'stayed the mandate' of its September 26, 2012 decision pending resolution by the U.S. Supreme Court." What that means is that newly filed family-based visa petitions requesting priority date retention for certain adults who lost eligibility as derivative beneficiaries when they aged out will be assigned a new priority date. That is unfortunate, but perhaps not surprising, given the circuit split on the issue of automatic conversion and priority date retention under CSPA and USCIS's stake in protecting its position on appeal pending a ruling from the Supreme Court, which is expected by the spring of 2014. Grab a turkey drumstick and stay tuned.

Timothy D. Widman is a San Jose Immigration Attorney and the owner of the Law Office of Timothy D. Widman.

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