Aging-Out Children Given Additional Time to Obtain CSPA Benefits

 

USCIS recently implemented another policy change to accord additional time for aging-out children to submit their I-485 adjustment of application based on the Child Status Protection Act (CSPA).

CSPA or the "Child Status Protection Act" was a law passed by Congress in 2002 to alleviate the negative impact of long waiting times for U.S. immigrant visas.  If a child has reached the age of 21 when visa numbers become available for her immigrant visa category, she will normally not be allowed to immigrate as a “child”.  But if this person's CSPA age is under 21, then she may still be eligible to immigrate.  CSPA "freezes" the age of a child while his or her immigrant petition was pending for processing, thereby reducing her legal age for immigration purposes.  Hence, an otherwise over-aged child may be able to immigrate based on her CSPA age.

In order to benefit from CSPA, immigrant children must do something to acquire their immigrant status within one year after visa numbers become available for their particular visa category.   If they are in the United States, they can fulfil this "sought to acquire" requirement by submitting their I-485 application for adjustment of status within one year.  

The question arises as to when this one-year period starts.  Most immigrants know that visa numbers are controlled by the monthly Visa Bulletin published by the U.S. Department of State.  However, since there are two sets of dates in the Visa Bulletin, i.e., Final Action Dates and Filing Dates, there was confusion as to which set of dates should be used to determine when visa numbers are available for a particular case.

Remember the policy announced by USCIS in February of this year regarding the use of Filing Dates to calculate CSPA age?   The February policy change confirms that immigrants may use the Filing Dates to determine if visa numbers are available or current for their particular visa petition. Because of this change, some immigrants might have missed the one-year deadline to submit their I-485 applications.  As such, USCIS made another change in their Policy Manual to confirm that such a failure can be excused, by designating the February policy change as an “extraordinary circumstance” under the law.  As a result, applicants now have additional time to submit their adjustment applications based on CSPA.

Although this additional policy change issued by USCIS applies only to applicants filing for I-485 adjustment in the U.S., the rationale should also be applied to overseas petitions.  Overseas immigrants generally "seek to acquire" their immigrant status through the National Visa Center (NVC) processing. It involves submission of an immigrant visa petition, civil documents such as birth and marriage certificates, payment of fees, submission of Affidavits of Support, etc.  Applicants whose cases were rejected on account of this one-year "sought to acquire" requirement should request for a review based on this new USCIS policy.  

As a reminder, most immigration petitions are time-sensitive.  Readers are reminded to submit their immigration applications and petitions as soon as possible to avoid denial or loss of eligibility.

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

New CSPA Policy Should Benefit Many Children

 

On 2/14/2023, USCIS revised its policy regarding Child Status Protection Act (CSPA) calculations.  USCIS now also accepts the "Dates for Filing" in the monthly visa bulletin published by the State Department in calculating the ages of aging-out green card applicants. Additionally, the Filing Dates can also be used as the basis for determining whether applicants "seek to acquire" resident status within one year of visa availability.

CSPA is a law that helps aging-out children to remain eligible for permanent resident status based on their parents' petitions.  It freezes the age of an applicant when the visa numbers are current for the applicant's visa category.  Previously, USCIS only allowed the use of the "Dates for Final Action" to determine whether visa numbers are available.  Since the Filing Dates are generally more favorable than the Final Action Dates, allowing the use of the Filing Dates should help more applicants preserve their eligibility. 

The change in policy should benefit many children but particularly children of Indian descent, as the gaps between the Filing Dates and Final Action Dates are particularly pronounced for India's employment-based visa categories. For example, many Indian applicants filed their I-485 applications in October, November, and December 2020 based on the Filing Date Charts in those months.

Another requirement for CSPA is that an applicant must take actions to apply for legal status within one year of visa availability.  Under the new policy, the one-year period starts on the 1st of the month in which USCIS starts to accept and process I-485 applications. USCIS may excuse violations of the one-year rule if there exists extraordinary circumstances.

The new policy is effective immediately and applies to all pending I-485 applications as of 02/14/2023.  Applicants whose I-485 applications were denied for these reasons can file an I-290B motion to reopen and reconsider within 30 days.  USCIS may use its discretionary authority to excuse late motions as well.  Although this is a DHS/USCIS policy change, it is expected that the State Department will also adopt this policy in adjudicating overseas immigrant visa applications. 

8/24/2023 Updates

USCIS issued another update on their Policy Manual on this issue:

• Explains that we consider the Feb. 14 policy change to be an extraordinary circumstance that may excuse an applicant’s failure to meet the sought to acquire requirement;
• Clarifies that we may excuse an applicant’s failure to meet the sought to acquire requirement if they did not apply to adjust their status because they could not calculate their CSPA age under the prior policy or their CSPA age would have been calculated as over 21, but they are now eligible for CSPA age-out protection under the new policy; and
• Clarifies that we consider applicants to have met the sought to acquire requirement if their application to adjust their status was pending on Feb. 14 and they applied to adjust their status within 1 year of a visa becoming available based on the Final Action Dates chart under the policy guidance that was in effect when they applied.

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

Child Status Protection Act: Delays Are Actually Better For Some

(This article was written in 2006 for ilw.com.)

The Child Status Protection Act (CSPA), Pub. L. 107-208 (Aug. 6, 2002), was enacted to allow certain "aged-out" children to lock in their age so that they are eligible to become legal residents despite delays in the processing of their visa petitions. However, for certain children of non-citizens, the only way that they may benefit from the provisions of CSPA is by virtue of an agency delay.

Before CSPA was passed, a child who was under 21 when her visa petition was filed would become ineligible for lawful permanent residency if, by the time the application for residency was finally adjudicated, the child had turned 21. Under the Immigration and Nationality Act (INA), an applicant is no longer considered as a "child" on the day she turns 21. INA § 101(b)(1). The CSPA was conceived and enacted to address this issue by allowing a child to apply for legal residence status even if they had turned 21, if their visa petitions were filed prior to the age of 21. The stated intent of CSPA was to counter processing delays of immigrant petitions.

The coverage of CSPA is quite broad, covering not only children of U.S. citizens, but also children of refugees and asylees, as well as direct and derivative beneficiaries of other family and employment-based visa categories. See, e.g., INA §§ 203(h)(2) and 208(b)(3). As far as the child of a U.S. citizen is concerned, her age will be locked in as of the date the underlying visa petition was properly filed with the government. For example, if the child is 20 when the visa petition is filed, she will continue to be considered 20 regardless when her visa application or adjustment application is adjudicated. Two other similar benefits are also conferred upon children of U.S. citizens under CSPA. [1]

While children of U.S. citizens enjoy relatively simple and direct benefits under CSPA, children of LPRs and other categories of applicants must first apply a mathematical formula to calculate their "age" for the purpose of CSPA to determine whether or not they are eligible for CSPA benefits. First of all, the child's age at the time a visa number becomes available is to be determined; then, reduce this age by the number of days that the underlying visa petition is pending with government; finally, the beneficiary child must seek LPR status within one year of the date of visa availability in order to lock in this age.[2]

Step one is to determine the child's age at the time a visa becomes available. According to the Department of State (DOS) and U.S. Citizenship and Immigration Services (USCIS), the date of "visa availability" is the first day of the month in which the priority date becomes current, as published in the DOS Visa Bulletin. However, both the Legacy INS and DOS have also interpreted that, if the immigrant petition is approved after the priority date has become current, the date of approval is the date of "visa availability." [3]

Step two is to subtract the number of days that the visa petition has been pending from the age above. The agencies have uniformly decided that a petition is considered "pending" for CSPA purposes from the date it was filed until the date it is approved. [4] This interpretation has so far not been challenged.

The following two examples will illustrate the application of this formula:

• Child #1's Form I-130 visa petition was filed in June 2000 by her LPR parent when she was 20 ½. The priority date became current on 1 June 2001 and her I-130 was approved in June 2001. An adjustment application was filed a month later. Applying the formula, the child's age when a visa number becomes available was 21 ½. However, since the I-130 was pending for one year, her age was reduced by one year to 20 ½. Therefore, she would be eligible to apply for LPR status as a child.

• Child #2 has the exact same facts, except that her I-130 visa petition was adjudicated and approved earlier, in November 2000. Applying the formula again, Child#2 was still 21 ½ when there was a visa number available. However, since the I-130 was pending for only five months, her CSPA age would only be reduced by five months to 21 and one month, and she would not be eligible to apply for LPR status as a child.

Although one of the reasons for the enactment of the CSPA was to counter administrative and processing delays, the current interpretation of the statute has indirectly created an inherent unfairness in the application process among the children of LPR parents. In the examples above, Child#1 and #2 both shared the exact same attributes and exercised equal diligence to pursue their LPR status. But they were subject to different treatment under CSPA based on events completely outside of their control. In fact, they could be twins in the same family with the same date of birth but would end up immigrating to the U.S. years apart.

Given the large volume of visa petitions and asylum and refugee applications, and regional differences, it is not unusual for the same type of applications to be adjudicated on very different dates. For children of non-citizens, their path to U.S. residency under CSPA could depend on one single event: when their immigrant petition is adjudicated. Under the current interpretations of the CSPA, ironically, delays in adjudication will sometimes be beneficial to them.

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

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Endnotes
¹ CSPA § 2 provides two more benefits for children of U.S. citizens. First, when a LPR parent who has filed a family 2A preference petition for his child becomes a citizen, then the age of the child will be locked in on the date of the parent's naturalization and, if the child is under 21 on that date, she will be classified as an immediate relative. Secondly, when a USC parent files a petition for a married son or daughter under the family 3rd preference category, and if the marriage is terminated during the pending of the petition, the child's age will locked in as of the date of termination of the marriage. If such a child is under 21, he or she will be classified as an immediate relative under CSPA.
² CSPA § 3, codified at §203(h) of the INA.
³ See The Child Status Protection Act - Memorandum No. 2, Johnny N. Williams (Legacy INS) (Feb. 14, 2003); DOS Cable on Child Status Protection Act (posted on AILA InfoNet at Doc. No. 02090940 (Sept. 9, 2002)).
⁴ Id.; See, also, Matter of Garcia (BIA Unpublished Decision, June 16, 2006); Matter of Kim (BIA Unpublished Decision, June 7, 2006).

USCIS Memo on CSPA Retention of Priority Date

On June 9th, 2014, the U.S. Supreme Court held in Scialabba v. Cuellar de Osario that the Child Status Protection Act (CSPA) only applies to retain the original priority date for aged-out children in family-based immigrant petitions if a new visa petition (e.g., one filed by their parents) is not needed. For more detailed discussion of this issue, please see our earlier blogging on this issue.

  

USCIS recently issued a policy memo to direct its immigration officers to process immigrant petitions previously put on hold pending the outcome of Scialabba. The policy memo, entitled "Updated Guidance to USCIS Offices on Handling Certain Family-Based Automatic Conversion and Priority Date Retention Requests Following the Supreme Court Ruling in Scialabba v. Cuellar de Osorio",  provides the following guidance to immigration officers:

• Earlier priority date under CSPA may only be assigned in those petitions filed by the same petitioner on behalf of the same principal beneficiary. Further, only approved petitions that have not been denied, revoked, or used for another immigrant visa may qualify. See 8 CFR 204.2(h).

• For adjustment of status cases automatically converted from a derivative in the F2A category to a principal in the F2B category (upon reaching the age of 21), the original priority date from the initial petition is retained and available to the new F2B classification.  A new petition by the petitioner is not necessary.  See 8 C.F.R. 204.2(a)(4).

• For other adjustment of status cases pending solely upon a request for priority date retention and the the applicant is not eligible based on the Supreme Court decision, the officer should deny the application unless the applicant appears to be eligible to adjust based on a different visa petition or different section of law.  Requests of evidence may be issued to gather evidence to confirm eligibility.

• For pending motions to reopen or motions to reconsider based on the same priority date retention issue, the immigration officer should deny the motion if it is clear now that the applicant is not eligible unless there are other ways for the applicant to obtain an immigrant visa.  Eligibility for adjustment of status must have existed at the time the adjustment application was filed. 

New Policy on Late CSPA Filings

On June 6, 2014, USCIS issued a new interim policy memo on the treatment of late filings under the Child Status Protection Act (CSPA). The policy memo explained what constitutes "extraordinary circumstances," for the purposes of excusing late filings under CSPA. Applicants whose cases were previously denied due to failure to file within the one-year filing window may also file motions to reopen their cases.

The Child Status Protection Act (CSPA) is a special law that allows over-aged immigrants to be treated as minor children for certain immigration benefits, even though their actual ages are over 21.  However, to take advantage of the CSPA, one must must "seek to acquire"  permanent residence status within one year from the date her priority date becomes current.

According to the new policy memo, an aged-out applicant must file an application for adjustment of status (Form I-485), an application for action on approved  petition (Form I-824), or an application for immigrant visa (Form DS-230) within one year.  Merely contacting a lawyer does not meet the "seek to acquire" requirement.

A recent Board of Immigration Appeal (BIA) decision held that USCIS has discretionary power to excuse late CSPA filings due to extraordinary circumstances.  Matter of O. Vasquez, 25 I&N Dec. 817 (BIA 2012).  The new policy memo explains that adjudicators, when deciding whether late filings should be excused, must decide whether extraordinary circumstances exist on a case-by-case basis and consider the totality of circumstances.

According to the policy memo, an adjudicator should excuse late filing if (1) The circumstances were not created by the individual's own action or inaction; (2) The circumstances were directly related to the failure to act within the one-year period, and (3) The delay was reasonable under the circumstances.

Specifically, valid reasons justifying late filings under CSPA include, but are not limited to: serious illness or mental or physical disability during the one-year period; legal disability (such as mental impairment); ineffective assistance of counsel;  timely filing rejected by the USCIS which was followed by a corrected filing within a reasonable time; and death or serious illness or incapacity of legal representative or immediate family member.  Other less compelling reasons such as financial difficulty, minor medical conditions, and circumstances within the alien’s control are not considered extraordinary.

Finally, the policy memo also allows applicants to file motions to reopen cases that were denied after the June 8, 2012 BIA decision solely based on late filings of applications.  Such motions should include evidence establishing extraordinary circumstances based on the new policy memo.

Supreme Court narrowly held that CSPA only applies when a new petition is not needed

Today, the Supreme Court issued a 5-to-4 decision in Scialabba v. Cuellar de Osario (formerly known as Mayorkas v. Cuellar de Osorio).  This decision held that the Child Status Protection Act (CSPA) only applies to retain the original priority date for those aged-out children who qualified or could have qualified as principal beneficiaries of an immigrant visa petition.  If they need a new petition (e.g., one filed by their parents) to fit into a new visa category, CSPA does not apply and they must stand in line again.  Please see our previous blogging for more details of this important issue.

Supreme Court to hear important Child Status Protection Act issue

On December 10, 2013, the United States Supreme Court will hear arguments on an extremely important issue regarding Section 3 of the Child Status Protection Act (CSPA).  The outcome of this case will determine which group of "aged out" children in immigrant visa petitions are allowed to keep the earlier priority date of the original visa petition and hence be able to obtain their U.S. green card faster. Back in 2009, I already predicted this issue would likely go up to the U.S. Supreme Court.

Background of the Case
Congress passed Child Status Protection Act in 2002 to provide relief to "aged-out" children in immigrant visa petitions.   Section 3 of the CSPA, codified as Section 203(h)(3) of the Immigration and National Act (INA), provides that "the [aged-out beneficiary's] petition shall automatically be converted to the appropriate category and the [beneficiary] shall retain the original priority date issued upon receipt of the original petition."  In Mayorkas v. De Osorio (Docket No., 12-930), the Supreme Court will decide whether Section 203(h)(3) applies to derivative beneficiary children in all visa petitions or just a subgroup of them.  Two examples will illustrate the importance of the case.

Example#1: Abel's father, a lawful permanent resident (LPR), filed an immigrant visa petition on behalf of Abel when he was under 21 under the Family 2A (F2A) preference category.  Due to visa backlog, Abel's case was pending for many years.  When his priority date finally became current, Abel was already over 21 and was no longer considered a "child" under the law.  However, Abel could still immigrate under the Family 2B (F2B) preference category as a son of a LPR over the age of 21.  There is no dispute that Section 203(h)(3) applies to automatically convert Abel's petition from F2A to F2B visa category, and that Abel is able to retain his initial priority date in the F2B petition. Consequently, Abel will be able to obtain his permanent residence status a lot faster than he otherwise would have.

Example#2: When Billy was 15 years old, his grandfather as a U.S. citizen filed an I-130 visa petition on behalf of Billy's father.  It was filed under the F3 preference category (married sons and daughters of USC) because Billy's father was married.  Billy was included in the visa petition as a derivative beneficiary child under the age of 21. Unfortunately visa numbers was not available until after Billy had already turned 21.  As a result, he was not able to immigrate with his father.  Upon becoming a LPR of the United States, Billy's father immediately filed an I-130 visa petition on behalf of billy pursuant to the F2B category.   If Section 203(h)(3) benefits are available to Billy, then he would be able to retain the priority date of his grandfather's petition from 10 years ago.  Otherwise, he would have to wait a lot longer.

The Issue of the Case
The main issue the U.S. Supreme Court will decide in Mayorkas v. De Osorio is whether Section 203(h)(3) of the INA (Section 3 of the CSPA) applies to all applicants who qualify as child derivative beneficiaries at the time a visa petition is filed but age out of qualification by the time the visa becomes current to the primary beneficiary.   The Government argues that Section 203(h) only applies to F2A direct beneficiaries (such as Abel in example#1 above) and derivative children beneficiaries while the Respondents argue that it should be applied to all derivative children beneficiaries including those in other preference categories (such as Billy in example#2 above).

The Statute at Issue
Section 3 of the Child Status Protection Act (CSPA), codified at Section 203(h) of the Immigration and Nationality Act (INA), provides:

(h) Rules for determining whether certain aliens are children
(1) In general
For purposes of subsections (a)(2)(A) and (d) of this section, a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 1101 (b)(1) of this title shall be made using—
(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d) of this section, the date on which an immigrant visa number became available for the alien’s parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability; reduced by
(B) the number of days in the period during which the applicable petition described in paragraph (2) was pending.
(2) Petitions described
The petition described in this paragraph is—
(A) with respect to a relationship described in subsection (a)(2)(A) of this section, a petition filed under section 1154 of this title for classification of an alien child under subsection (a)(2)(A) of this section; or
(B) with respect to an alien child who is a derivative beneficiary under subsection (d) of this section, a petition filed under section 1154 of this title for classification of the alien’s parent under subsection (a), (b), or (c) of this section.
(3) Retention of priority date
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) and (d) of this section, 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.
(4) Application to self-petitions
Paragraphs (1) through (3) shall apply to self-petitioners and derivatives of self-petitioners.

Main Arguments in the Case
Because of the importance of this case, in addition to the Respondents in the case and the Government, many immigrant rights groups have also presented legal arguments as amici curiae.  The major arguments are summarized as follows:


1) Statutory interpretation:  Legal analysis usually starts with statutory interpretation, which is a process to find out exactly what a statute means.  It starts with the everyday plain meaning of the words in the statute. If the meaning is ambiguous, then the court usually defers to administrative agency's reasonable interpretation of the meaning.  Here the Board of Immigration Appeal (BIA) had interpreted Section 203(h) to benefit only F2A beneficiaries (See another blog post on Matter of Xiuyi WANG.)  Government agrees with the BIA interpretation that the term "automatically be converted" in Section 203(h) implies that no new petition or petitioner should be involved.  Since for conversion to occur, derivative beneficiaries in other preference categories such as F3 and F4 require a new petition to be filed by the principal beneficiary (parent) on behalf of the aged-out child, Government argues that Section 203(h)(3) does not apply to them. 

Respondents, on the other hand, argue that the language is not ambiguous (which is also the position of the Ninth Circuit Court of Appeals) and therefore the Court should not defer to the BIA interpretation. They also argue that "automatic conversion" does not necessarily occur when a beneficiary turns 21; instead it occurs when the subsequent F2B visa petition filed by her parent is adjudicated by USCIS.

2) Policy argument vs. legislative history:  CSPA was enacted to foster family unity, and therefore should be interpreted in the most generous manner -- this is probably the strongest argument of the Respondents and the immigrant rights advocates.  Government does not address this issue directly. Instead it focuses on the legislative history of CSPA and argues that nothing in the legislative history supports a broad reading of Section 203(h).

3) Fairness issue:  Respondents and immigrant rights groups argue that a narrow interpretation of Section 203(h)(3) does not make sense as it would confer less benefits to U.S. citizens than to lawful permanent residents.  Specifically, F1, F3 and F4 immigrant visa petitions are filed by U.S. citizens while F2 cases are filed by permanent residents. Therefore, Section 203(h) should be read to apply for all preference categories so as to confer the same rights to U.S. citizen petitioners.  On the other hand, Government argues that it would not be fair to the other F2B beneficiaries already waiting in line if individuals such as Billy above are allowed to "jump the line" in F2B. Further, Government also points out that it would also not be fair to the petitioning parents in the existing F2B cases who obtained their green cards before the aged-out children's parents at issue.

Conclusion
It would be difficult to predict with certainty how the U.S. Supreme Court will rule on this very important issue.  Whatever the decision is, it will have far-reaching effects on immigrant families for many years to come.   For the intending immigrants, it is extremely important for them to pay attention to the latest development of this critical Child Status Protection Act issue.

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.