Can an aged out foreign national take advantage of an earlier visa petition’s priority date?

The U.S. immigration laws are constantly changing. However, the basic immigration principles usually do not shift too much without a major Congressional Act or a Federal Court decision. When a major change does occur, it usually has profound and long term impact to the immigrant communities. Right now, one such change may be forth coming. As the title suggests, there has been a controversy over whether an aged out foreign national may take advantage of an earlier visa petition’s priority date to immigrate to the U.S.

Specifically, the issue arises like this: A foreign national’s parent has a brother or sister who is a U.S. citizen. Based on the 4th preference category (F4) under the family immigrant visa system, the uncle/aunt filed an immigrant visa petition on behalf of the parent on date1. Due to the backlog of immigration cases, there was no visa number available for this petition for many years. When there was finally visa number available, the foreign national would normally be able to immigrate to the U.S. with the parent as a dependent child. Unfortunately, he became “aged out” by turning 21 or older when the petition became current. He was told he could not come with the parent. The parent landed the U.S. as an immigrant and immediately filed his own petition on behalf of the “aged out” son on date2. Does this son now have to wait for another 10 plus years before he could come to the U.S.? Or can he use the priority date (date1) established by his aunt/uncle’s earlier petition? As you can tell, there is a major difference in the waiting time involved between these two dates.

The Board of Immigration Appeal (BIA) in Falls Church, Virginia, ruled that the foreign national must wait longer because his priority date is the later date (date2). In Matter of Xiuyi WANG, a case decided by the BIA on June 16, 2009, a Chinese family argued that the Child Status Protection Act (CSPA) of 2002 should protect the beneficiary and entitle her to use the earlier priority date established by an F4 petition filed by her father’s U.S. citizen sister. In Wang, the aged out daughter could not come to the U.S. with her father. Upon his arrival in the U.S. as a legal resident, her father immediately filed his own family petition under the F2 category for her.

A discussion of the CSPA is needed to fully understand the issue. Specifically, the CSPA added a provision under Section 203(h)(3) of the Immigration and Nationality Act (INA) which provides that that “If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections(a)(2)(A) [F2A] and (d) [F4], the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”

The Wang family argued that 203(h)(3) automatically converted the first petition filed by the aunt to the second petition filed by the father and the aged out daughter should retain the original priority date. The BIA, however, disagreed, holding that when the daughter turned 21, there was no appropriate visa category for conversion. The first petition was filed by a U.S. citizen for her brother. Although normally a child could immigrate with the parent, here the daughter was over 21 and she was no longer considered a “child” under the immigration laws. The petition was by the aunt for her brother but not directly for the niece, and there no visa category for a niece’s petition under the preference system. Secondly Section 203(h)(3) is intended for the conversion of the same petition between visa categories. For example, an F2 petition can be converted to a F1 petition when the petitioner became a citizen. Here, the second petition filed separately by a new petitioner – the father. Therefore, conversion is not possible.

This case is particularly interesting as the BIA had decided a similar case in 2006 but held the opposite way. This 2006 case is an “unpublished case” -- meaning that it has no legal effect – but the BIA’s change in position is still worth noting. Matter of Wang has become a controversial decision immediately and appeals have already been filed with several Federal Courts on this exact issue. It would be difficult to predict how the courts would decide at the end. It is even possible that the case might go up to the U.S. Supreme Court if there is a disagreement between the Federal Courts of Appeal on this issue.We will keep the readers updated as to the new development of this important issue.