On June 30, 2011, the 2nd Circuit has re-interpreted a portion of the CSPA in the case found at: http://caselaw.findlaw.com/us-2nd-circuit/1572635.html?DCMP=NWL-pro_immigration
The 2nd Circuit overruled the reasoning of the BIA case of Matter of Wang, 25 I. & N. Dec. 28 (BIA 2009) but reached the same conclusion.
"In Wang, the BIA held that “automatic conversion,” as the term is used in Section 1153(h)(3), means an automatic change in beneficiary classification “without the need to file a new visa petition.” Wang, 25 I. & N. Dec. at 34–35. The BIA relied on “the relevant provisions of 8 C.F.R. § 204.2(i), which have been in effect since 1987, [and which] provide for the ‘automatic conversion of preference classification’ from one preference category to another upon the occurrence of certain events.” Id. at 34. Similarly, and based on 8 C.F.R. § 204.2(a)(4), the BIA construed the word “retention” to apply only to “visa petitions filed by the same family member.” Id. at 35. Accordingly, the BIA held that the automatic conversion and priority date retention provisions of Section 1153(h)(3) do not apply to an alien who ages out of eligibility for an immigrant visa as a derivative beneficiary, and on whose behalf a second family preference petition is later filed by a different petitioner. Id. at 38–39."
".....Applying the traditional tools of statutory construction, as explained below, we find that Congress's intent on this point was clear. Section 1153(h)(3) does not entitle an alien to retain the priority date of an aged-out family preference petition if the aged-out family preference petition cannot be “converted to [an] appropriate category.” Therefore, deference to the BIA's interpretation of Section 1153(h)(3) is not appropriate in this case."
The 2nd Circuit overruled the reasoning of the BIA case of Matter of Wang, 25 I. & N. Dec. 28 (BIA 2009) but reached the same conclusion.
"In Wang, the BIA held that “automatic conversion,” as the term is used in Section 1153(h)(3), means an automatic change in beneficiary classification “without the need to file a new visa petition.” Wang, 25 I. & N. Dec. at 34–35. The BIA relied on “the relevant provisions of 8 C.F.R. § 204.2(i), which have been in effect since 1987, [and which] provide for the ‘automatic conversion of preference classification’ from one preference category to another upon the occurrence of certain events.” Id. at 34. Similarly, and based on 8 C.F.R. § 204.2(a)(4), the BIA construed the word “retention” to apply only to “visa petitions filed by the same family member.” Id. at 35. Accordingly, the BIA held that the automatic conversion and priority date retention provisions of Section 1153(h)(3) do not apply to an alien who ages out of eligibility for an immigrant visa as a derivative beneficiary, and on whose behalf a second family preference petition is later filed by a different petitioner. Id. at 38–39."
".....Applying the traditional tools of statutory construction, as explained below, we find that Congress's intent on this point was clear. Section 1153(h)(3) does not entitle an alien to retain the priority date of an aged-out family preference petition if the aged-out family preference petition cannot be “converted to [an] appropriate category.” Therefore, deference to the BIA's interpretation of Section 1153(h)(3) is not appropriate in this case."