The Ninth Circuit Court of Appeals in September 2011 upheld significant restrictions on the Child Status Protection Act (CSPA) for derivative beneficiaries.  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).  The Court in De Osorio v. Mayorkas upheld the BIA's decision in Matter of Wang that this provision applies only to the direct beneficiaries of a visa petition and not derivative beneficiaries.  De Osorio v. Mayorkas, No. 09-56785 (9th Cir. 09/02/2011).  Matter of Wang, 25 I.&N. Dec. 28 (BIA 2009).

A direct beneficiary is the person for whom the visa petition was filed.  A derivative beneficiary is that person's spouse or child for whom a separate visa petition was not filed.  This important decision confirms that neither the priority date retention provision, nor automatic conversion 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).

Derivative beneficiary is defined at 8 USC 1101(b)(1), which entitles a child under the age of 21 to the same immigration status as a parent who is the beneficiary of an I-130 petition based on a family relationship or an I-140 petition based on employment.  A spouse or child is entitled to derivative beneficiary status only when it is not possible for the petitioner to file a petition for that person directly:

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.

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.

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.

The law is clear now that CSPA will allow neither automatic conversion nor priority date retention for derivative beneficiaries of family or employment-based immigrant petitions.