USCIS to Provide Asylee I-94 and Green Cards to Cases Approved by IJs and BIA

On May 4, 2023, USCIS announced that the agency is providing status documents for people who were granted asylee or permanent resident status by the Immigration Court and Board of Immigration Appeals (BIA).

Foreign nationals usually apply for legal status from the USCIS.  However, some individuals in removal cases have their cases heard and decided by the Immigration Court or the BIA.  When status is granted by an Immigration Judge or the BIA, an applicant sometimes had difficulties obtaining proof of their legal status.  The recent announcement means that USCIS is actively and affirmatively providing status documents to applicants after their cases are approved by the Immigration Court and/or the BIA.  

These documents include (1) Form I-94, Arrival/Departure Record, with asylee stamps, which are issued to applicants who have been granted political asylum; and (2) Permanet Resident Cards (green cards) for individuals who have been granted adjustment of status. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Recent DUI Arrest - Basis for Denying Immigration Bond

A foreign national who is in the custody of the U.S. Government may request for a custody determination or "bond hearing" under section 236(a) of the Immigration and Nationality Act.  An Immigration Judge may set a bond as a condition for the release of the foreign national if it can be established that he or she is not a danger to the community, not a threat to the national security, and does not pose a risk of flight.  

Driving under the influence is a significant adverse consideration in determining whether an alien is a danger to the community in bond proceedings, according to the Board of Immigration Appeals.  In Matter of Siniauskas, 27 I&N Dec. 207 (BIA 2018), the foreign national is a long time U.S. resident without legal status; he is married to a green card holder and has a U.S. citizen daughter who filed an immigrant visa petition on his behalf.  He also volunteers in church and owns his business.  He had several DUI convictions more than ten years ago and has sought professional help regarding his drinking problem.  Recently he was arrested again for drunk driving.  He explained that his recent arrest was an aberration that has mitigating circumstances, i.e., it happened on the first anniversary of his mother’s death. 

However, the Board did not accept his explanation.  The Board found his actions indicate that he is and continues to be a danger to his community and revoked his bond. The Board's decision means that he will continue to be held in custody until a decision is made on his immigration petitions. 

In recent years, DUIs have been made a priority for immigration enforcement, especially under the current administration.  DHS Secretary had stated in an interview that a single DUI could lead to deportation of an immigrant. 

After-acquired spouses and children not grandfathered for 245(i) benefits

Section 245(i) of the Immigration and Nationality Act (INA) is a special provision of the law that allows certain groups of individuals to adjust status to become lawful permanent residents of the U.S. despite their illegal status.  The deadline for filing an immigrant petition under 245(i) is April 30, 2001.  For individuals who qualify for section 245(i) benefits, they are considered “grandfathered” for future applications.  It means that they are able to apply for adjustment of status based on subsequent immigrant visa petitions unrelated to the initial application.  The spouses and children of the principal applicant in existence are also grandfathered for 245(i) benefits.     However, for individuals who became spouses or children of a principal grandfathered applicant after April 30, 2001, they cannot qualify as "derivative grandfathered aliens" for purposes of section 245(i),  according to a recent decision by the Board of Immigration Appeals. Matter of Vanessa Joan ESTRADA, 26 I&N Dec. 180 (BIA 2013)

Section 245(i) allows individuals who entered the U.S. without inspection, overstayed their status, violated their immigration status, etc., to have a chance to apply for adjustment of status and become legal residents by paying a penalty fee.  It is an old law that has not been renewed by Congress.  Hence, only those who are grandfathered may use 245(i) to apply for legal status.  There are two types of grandfathered individuals.  First, the principal applicants who filed “an approvable when filed” immigrant visa petition on or before April 30, 2001.  Second, the spouses and children of the principal applicants in existence on or before April 30, 2001.  They are also grandfathered and may also be independently qualified for section 245(i) relief in future petitions.  However, neither section 245(i) nor the regulations deal with the status of the spouses acquired, and children born, after April 30, 2001. 

In Estrada, the two respondents are a couple who are citizens of the Philippines.  They both entered the U.S. as temporary visitors and overstayed their status.   Similarly they both claim benefits pursuant to section 245(i) of the INA based on immigrant petitions filed before April 30, 2001.  The husband was the beneficiary of an I-130 petition filed by his former wife.  The wife submitted an I-140 employment-based immigrant petition as an “extraordinary ability” alien under the EB-1A  employment visa category.  However, they were not married until 2007.  Although the husband is a grandfathered principal applicant based on the I-130 petition (which apparently was not consummated), he has no basis to file a subsequent visa petition and therefore is relying on his spouse’s petitions.

The wife withdrew the initial I-140 petition in 2002. Subsequently, a second employment-based I-140 visa petition was filed on her behalf in 2006.  The couple now claim benefits under section 245(i). They make two independent arguments regarding their eligibility.   First, they argue that the wife should be  grandfathered based on the first I-140 visa petition filed in April 2001.  Second, they argue that they are both grandfathered based on the I-130 petition filed on behalf of the husband in 2000 by his former wife.

The Board found both arguments unpersuasive and dismissed their appeal.  First of all, the BIA concluded the wife’s first I-140 petition was not “approvable when filed” because the application was completely lacking in supporting evidence.  (Normally an EB-1A extraordinary petition requires extensive supporting documentation).  Therefore, she is not a grandfathered alien based on her first I-140 petition.  Regarding the husband’s I-130 petition, the Board did find the husband to be a grandfathered principal applicant.  However, the BIA concluded that the wife, as an after-acquired spouse, did not become a grandfathered applicant.  As such, she cannot use a subsequent visa application, i.e., her second I-140 petition, to apply for legal status.  Consequently, the husband also cannot claim any benefit as the dependent spouse of the wife.

Neither section 245(i) or the related regulation provides answers to the status of after-acquired spouses and children after April 30, 2001.  The Board therefore turned to "The Supplementary Information to the Interim Rule" for answers.  The Attorney General in the Supplement explains that that “ the purpose of grandfathering was to allow qualifying aliens to preserve their eligibility for section 245(i) adjustment after the April 30, 2001, sunset date."  The Board therefore found the intent of section 245(i) is to protect the status of foreigners who met the requirements on or before the deadline only.  Spouses acquired and children born afterwards are not within the class of people protected by section 245(i).

The Board explained that a spouse in existence on April 30, 2001 preserves her grandfathered status despite changes in the relationship with the principal (e.g., divorce, death)  afterwards.  Similarly, subsequent changes in circumstances such as marriages or births that took place after April 30, 2001 should not disturb the original class of eligible individuals under section 245(i).  To support its position, the Board cited several BIA and Federal Court decisions:  Matter of Ilic, 25 I&N Dec. 717 (BIA 2012); Matter of Butt, 26 I&N Dec. 108 (BIA 2013); Linares Huarcaya v. Mukasey, 550 F.3d 224 (2d Cir. 2008); and Landin-Molina v. Holder, 580 F.3d 913 (9th Cir. 2009)

Finally, the Board emphasized that after-acquired spouses and children may still be indirectly eligible for section 245(i) relief in certain circumstances.  Under section 203(d) of the INA, these spouses and children who are accompanying or following to join a grandfathered adjustment applicant are also “considered grandfathered”  if the qualifying relationship (i.e., marriage or birth) existed before the grandfathered alien adjusts his or her status.  It is important to note that the date of adjustment of the grandfathered alien is usually after the sunset date of April 30, 2001.

Section 203(d) is a general provision that applies to all adjustment applicants.  The spouses and children in this situation are merely immigrating as dependents of the principal immigrant.  It just happens that the principal is applying for adjustment of status pursuant to section 245(i).   They are only treated as "grandfathered" with the principal but do not enjoy actual grandfathered status.   Dependents who have actual grandfathered status under 245(i) are able to independently apply for adjustment of status based on their own, subsequent visa petitions.  This difference is night and day, as illustrated by the Filipino couple in Estrada.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

BIA allows reopening of proceedings to apply for asylum based on changed country conditions

The BIA allows a Chinese national to reopen his removal case to apply for asylum and withholding of removal based on changed country conditions arising in the country of the alien’s nationality or the country to which removal has been ordered, without having first to rescind a prior in absentia order of removal.  Matter of J-G-,  26 I&N Dec. 161 (BIA 2013).  The respondent was ordered deported previously because he failed to show up for his removal hearing.  After analyzing the relevant statutes, regulations and  legislative history, the Board concluded that the respondent may file a motion to reopen his case to apply for asylum and withholding of removal if he can prove that the country conditions have changed, the changes are material and were not available and could not have been discovered or presented at the time of previous hearing.
Further, normally a respondent may only file one motion to reopen after the conclusion of a removal case.  The BIA also held that this numerical limitation on filing a motion to reopen in 8 C.F.R. § 1003.23(b)(1) (2013) does not apply when the respondent is seeking reopening to apply for asylum and withholding of removal based on changed country conditions.  Here the Chinese respondent based his motion on his conversion to Catholicism and his assertion that there has been increased persecution of the underground Catholic Church in China. 

Mother's previous marriage fraud does not bar her child's visa petition as a stepchild

A stepchild’s immigration visa petition may still be approved even though his mother was previously found to have entered into a sham marriage in order to obtain legal immigration status, according to a recent decision by the Board of Immigration Appeal (BIA).

Section 204(c) of the Immigration and Nationality Act (INA) provides that a person may not obtain an immigrant visa if he or she was previously found to have obtained, or attempted to obtain, immigration benefits based on a sham marriage. In the Matter of Eugene Reagan OTIENDE, 26 I&N Dec. 127 (BIA 2013), a U.S. citizen petitioner filed a visa petition on behalf of his stepchild based on his marriage to the child’s mother.  However, the mother was previously found to have committed marriage fraud. Consequently the USCIS denied the child’s visa petition under section 204(c).

On appeal, the BIA held that although a visa petition filed by a U.S. citizen for a spouse may be subject to denial under section 204(c) based on the spouse’s prior marriage fraud, that section does not prevent the approval of a petition filed by the citizen on behalf of the spouse’s child.  The Board reasoned that the child’s petition is a separate application which must be considered on its merits to determine if the child meets the definition of a “stepchild” under the immigration law.

A child is considered a stepchild under the INA if the petitioner entered into a valid marriage with the child’s mother before the child reaches the age of 18. Here, USCIS denied the child’s petition solely based on section 204(c) without considering the merits of the child’s petition.   The rationale is as follows: since the child’s mother committed marriage fraud before, she can no longer apply for an immigrant visa based on a second marriage to another U.S. citizen under section 204(c).  Hence, absent a valid marriage-based visa petition between the mother and the petitioning spouse, USCIS concluded that the child’s petition must also be denied as his status hinges on his mother’s marriage.

The Board disagreed and held that the mother’s previous marriage fraud only precludes her from applying for an immigration visa, according to the plain language of section 204(c).  The statute does not affect the child’s eligibility to apply for stepchild status based on his relationship to the stepfather in the current marriage.  The child’s case must be considered on its own, according to the board.

This Board decision is a fair one, as the child’s petition should not be denied based on his mother’s previous marriage fraud. Although the Board held in favor of the petitioner, it does not mean that the child’s case will definitely be approved.  The petitioner must show that the marriage creating the stepchild relationship is valid and took place before the child reaches 18.  Their marriage will be subject to strict scrutiny given the wife’s previous marriage fraud. If the marriage is found to be a sham, the child’s case will be denied.

Asylum was denied for foreign national who has dual nationality

The U.S. Board of Immigration Appeals denied political asylum to a foreigner who is a dual national of Venezuela and Spain.  The Board held that “[a]n alien who is a citizen or national of more than one country but has no fear of persecution in one of those countries does not qualify as a “refugee” under section 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (2006), and is ineligible for asylum.”  Matter of B-R-, 26 I&N Dec. 119 (BIA 2013).

Technorati Tags: BIA,asylum

New Guidance on Adoption for Immigration Petitions

The U.S. Citizenship and Immigration Services (USCIS) has issued new guidance on the requirements of adoption for immigration purposes under the Immigration and Nationality Act (INA).   Under U.S. immigration law, children may receive benefits based on their relationship to their parents. For instance, a U.S. citizen or lawful resident may petition for his children under the age of 21 for immigration.  Children may also indirectly derive benefits through their parents in other situations. For example, when a U.S. citizen's immigrant visa petition filed on behalf of a sibling gets approved, the sibling's minor children may also immigrate with their parent.  Similarly, children may also derive immigration benefits through their parents in other types of applications including political asylum, refugee status and naturalization, if other requirements are met.  The policy is to foster family unity.

Adoption becomes an important issue because adopted children may also receive immigration benefits like naturally born children.  The key is that the underlying adoption must be legally valid.   Generally speaking, the INA authorizes three different ways for an adopted child to be treated as a naturally born child of their parent for immigration purposes pursuant to INA section 101(b)(1).  First, adoption is valid when the adoptive parent(s) have two years of legal custody and joint residence over the child, in addition to other requirements.  The second way is when children are coming to the United States as 

“orphans” from countries that have not ratified the Hague Adoption Convention, if they have been adopted, or are coming to the United States to be adopted, by U.S. citizen(s).  The third situation is when children are coming to the United States who have been adopted, or are coming to the United States to be adopted, by U.S. citizen(s) under the Hague Adoption Convention. 

In a recent policy memorandum issued by the USCIS on November 6, 2012, the government agency provided new guidance on the issue of adoption.  In order for an adoption to be valid for immigration petitions, an adoption must satisfy three important requirements:  "(1) Be valid under the law of the country or place granting the adoption; and (2) Create a legal permanent parent-child relationship between a child and someone who is not already the child’s legal parent; and (3) Terminate the legal parent-child relationship with the prior legal parent(s)."    This memorandum is binding on all USCIS officer for the purposes of adjudicating immigration petitions. 

Since the INA does not define "adoption", the only guidance was provided by the Board of Immigration Appeals (BIA).  BIA has previously held that an "adoption" is valid only if it: "1. Terminates the legal parent-child relationship between the child and any prior parent(s); and 2. Creates a permanent legal parent-child relationship between the child and the adopter. "  The BIA's interpretation of adoption has been adopted by the USCIS.  

The requirements listed in the new guidance applies to every benefit request and application based on an “adopted child” relationship under INA section 101(b)(1)(E), including, but not limited to:  Form I-130;  Form I-730;  Form N-600;  Form N-600K; or "a claim to eligibility for an immigrant or nonimmigrant visa or classification as a derivative under INA section 203(d)." 

The memorandum clarifies that a child “coming to the United States for adoption” may also qualify as an orphan or as a Hague Convention adoptee under INA.  Hence, even if an adoption does not meet the three requirements listed in the memorandum, the child may still establish that the prospective adoptive parents have legal custody to bring the child to the United States for adoption under INA.

The memorandum also provides other tips in filing an adoption-based petition.  For example, it comments that even if a petitioner is not the birth parent, a child may also qualify as the child of the principal refugee or asylee.  In other situations, a step parent-child relationship may be a more preferable way of petitioning for a child whose parent has re-married a U.S. citizen.  For Hague Convention Adoption,  it is also a good idea for the petitioner to obtain the written statement from the "Central Authority" of the other Hague Adoption Convention country before applying for an adoption order in the United States. Even if a written statement is obtained afterwards, it can still be used to resolve any jurisdictional issues of the adoption court. 

The new guidance is implemented through amendments of the related sections of the Adjudicator's Field Manual (AFM). The new guidance applies to all both domestic adoptions and international adoptions of non-U.S. citizen children.  Similarly, all adoption-related immigration benefits are also covered.  We welcome the new guidance as it provides important guidelines for both prospective adoptive parents and USCIS officers in handling adoption situations. 

BIA held Advance Parole Absence does not trigger Unlawful Presence Bar

In a recent BIA decision, the Board surprisingly held that a foreigner who left the United States after securing an “advance parole” travel document from the DHS is not considered a departure for the purposes of determining whether the person is subject to the 10-year unlawful presence bar.  The Board held that the foreigner is therefore allowed to apply for adjustment of status to become permanent resident under section 245(i) of the Immigration and Nationality Act. 

In Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), the respondents, husband and wife, legally entered the U.S. in 1999 and 2000 respectively.  After overstaying their nonimmigrant visas, they were present in the U.S. without legal status for more than five years.  Subsequently, the male respondent sought to apply for legal status based on an approved employment based immigrant visa petition filed on his behalf by an employer pursuant to section 245(i) of the Act.  However, the couple made a trip to India to attend totheir aging parents after securing advance parole travel documents from the DHS.  Upon their return to the United States with advance parole, DHS argued that they were barred from applying for adjustment of status because they were inadmissible to reenter the United States for ten years pursuant to section 212(a)(9)(B)(i)(II) of the Act.  This section of the law bars foreigners from admission for ten years if they departed the United States after having been unlawfully present for more than one year.

The BIA previously held in Matter of Lemus that section 245(i) does not overcome the unlawful presence bars, absent a waiver.  In Lemus, the respondent did not have an advance parole document when he left the United States.  Here, the BIA carved out an exception for the respondents in Matter of Arrabally and Yerrabelly, explaining that their absence from the U.S. after a grant of advance parole did not constitute a departure that would trigger the unlawful presence bars.  The BIA noted the advance parole (1) was approved in advance by the United States Government on the basis of a merits application; (2) presupposed the alien’s authorized return thereafter, and (3) was requested solely for the purpose of preserving the alien’s eligibility for adjustment of status.  The BIA seemed to be saying that the respondents merely took a brief trip outside the United States with no intention to depart.

Hence, the BIA concluded that the respondents are not inadmissible for adjustment of status pursuant to section 212(a)(9)(B)(i)(II).  Therefore, they are eligible to apply for adjustment of status based on section 245(i).  The decision no doubt is good news for applicants who must travel for emergency reasons.  However, this decision could still be challenged by the government in federal court.  For example, as the dissenting opinion noted, a recent Third Circuit decision also involved advance parole travel but reached a different conclusion.  Therefore, it is very important for applicants to fully understand the legal ramifications before travelling on advance parole.  

BIA held Section 245(i) Unavailable to Reentrants with Prior Violations

Litigation surrounding section 245(i) of the Immigration and Nationality Act often involves complex factual and legal issues. Matter of Miguel LEMUS-Losa, 25 I&N Dec. 734 (BIA 2012), a recent BIA decision on section 245(i) is such an example.  In LEMUX, the BIA held that adjustment of status under section 245(i) is unavailable to an alien who is subject to the 3-year and 10-year bars under section 212(a)(9)(B)(i)(II) of the Act, without a waiver.

Section 245(i) was enacted in 1994 by Congress to allow certain applicants for adjustment of status in the U.S. to be eligible to receive their permanent resident status even though they entered the U.S. without having been formally inspected by an immigration officer first.  However, Section 301 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 imposed two additional grounds of inadmissibility for foreigners who have prior violations of immigration laws.  First, section 212(a)(9)(B)(i)(II) of the Act imposes the 3-year and 10-year bars for those who have been present in the U.S. unlawfully.   Second, section 212(a)(9)(C)(i)(I) punishes those individuals who reentered or attempted to reenter the U.S. after prior violations. 

In this case, the foreigner reentered the U.S. without authorization after having been present in the U.S. for more than one year.  He then applied for adjustment of status.  Both the immigration court and the BIA denied his request based on the 10-year-bar under 212(a)(9)(B)(II) of the Act. The case was appealed to the 7th Circuit, which disagreed and remanded the case back to the BIA for another decision.  The 7^th Circuit’s decision is based on BIA’s failure to examine the differences between section 212(a)(9)(B)(i)(II) and section 212(a)(9)(C)(i)(I) of the Act.  Section 212(a)(9)(C)(i)(I) makes it inadmissible for foreigners who had accrued one year of unlawful presence or who had been previously deported from the U.S., and then reentered or attempted to reenter the U.S. again.  The 7^th Circuit reasoned that these reentrants’ behavior are more serious than the first class of individuals who are merely “seeking admission” after accruing unlawful presence.

On remand, the BIA analyzed the statutes again and came to the same conclusion that section (a)(9)(B)(i)(II) or the 10-year-bar still bars the applicant from adjustment in spite of section 245(i).  According to the BIA, the meaning of “seeking admission” is a lot broader than the general meaning of the term and covers many different types of situations.  The BIA concludes that although section (a)(9)(B)(i)(II) and section (a)(9)(C)(i)(I) are different, neither section covers mere“entry without inspection” or other conduct that section 245(i) was designed to forgive.  Ultimately, the BIA decided to remand the case to the immigration judge to examine whether section (a)(9)(C)(i)(I) also applies here as the applicant apparently reentered the U.S. after prior violations.  The final chapter of this case has yet to be written. 

BIA held F2A visa beneficiaries may not "opt out" of automatic conversion to F1

The Board of Immigration Appeal (BIA) has just held that a Mexico-born visa beneficiary is not allowed to retain his F2A preference status by opting out of automatic conversion to the F1 category as a son of a United States citizen upon his parent’s naturalization. Matter of ZAMORA-MOLINA, ID 3729, 25 I&N Dec. 606 (BIA 2011)

The mother of the beneficiary son filed a visa petition in 2004 on his behalf when he was under the age of 21. In 2007 after pending for more than two years, the visa petition was approved but priority date was not current. Subsequently, before the priority date became current, the mother naturalized and became a U.S. citizen in 2009 when the son was 22 years of age.  However, his age as calculated under the Child Status Protection Act (CSPA) remained under 21 after subtracting the period of time the visa petition was pending.

The regulation automatically converts a F2A (minor unmarried child of resident parent) and F2B (adult unmarried child of resident parent) petition to be an immediate relative and F1 petition respectively upon the naturalization of the petitioner. 8 C.F.R. § 204.2(i)(3)

The son argued that he should be able to adjust as an immediate relative of a U.S. citizen mother by virtue of his CSPA age.  The BIA held that his actual age, not CSPA age, should be used in determining whether he is an immediate relative pursuant to Section 201(f)(2) of the Immigration and Nationality Act.  Because his actual age on the date of his mother's naturalization was over 21, he cannot be classified as an immediate relative.

The mother and son also argue that they should be able to "opt out" of the automatic conversion to F1 visa category, which has a much longer waiting time, than their previous F2A category.

Section 6 of CSPA, also known as Section 204(k)(2) of the INA, allows an alien to affirmatively opt out of automatic conversion from the F2B visa category (unmarried sons and daughters of LPR) to the F1 category by filing a written statement with the Attorney General.  However, BIA held that there is no provision of law that allows an applicant to "opt out" of automatic conversion from F2A to F1 when the petitioner-parent becomes a citizen. Hence, the Board held that the son in this case is not able to adjust his status by using the current cut-off date under the Mexico F2A preference category. 

One argument that could have been made by the son was that his case was automatically converted from F2A to F2B by virtue of his turning 21 and before his mother naturalized and, therefore, his case being a F2B petition should be entitled to the "opt out" provision of Section 204(k)(2).  However, Section 203(h)(3), another controversial section of CSPA seems to suggest that automatic conversion is not available if the beneficiary's CSPA age is under 21, which is the case here.

This is a very important decision on a controversial issue.  BIA did not address the Equal Protection argument raised by the son as it lacks authority to rule on Constitutional issues. However, the issue is hardly settled and will likely be revisited by a federal court soon.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

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.