Scialabba v. Cuellar de Osorio - Supreme Court

Meaning of INA § 203(h)(3)


November 4, 2015

INA § 203(h)(3) provides alternate benefits - specifically, retention of the original priority date and automatic conversion of the petition - for beneficiaries who are found to have "aged out" under the age preservation formula of the CSPA. The Council opposed the BIA’s restrictive interpretation of this provision in In amicus curiae briefs filed with several Courts of Appeals and the Supreme Court, arguing that it should be found to apply to a larger universe of aged-out children.  Ultimately, the Supreme Court upheld the BIA’s interpretation.

We and our partner organizations argued that the BIA, in Matter of Wang, 25 I&N Dec. 28 (BIA 2009), was mistaken in limiting INA § 203(h)(3) to only beneficiaries of family second preference visa petitions. Subsequently, in an amicus brief to the U.S. Supreme Court, we and other amici argue that the the Board's interpretation undermines Congress' purpose to promote family unity and that this interpretation is inconsistent with agency practice. On June 9, 2014, a plurality of five Justices of the Supreme Court agreed that § 203(h)(3) was ambiguous and that the Board’s interpretation of it in Matter of Wang was reasonable. Thus, the Court upheld this interpretation. Four Justices dissented and would have found that the statute should be interpreted as amici and the plaintiffs argued. Scialabba v. Cuellar de Osorio, 134 S.Ct. 2191

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