Wednesday, August 12, 2009

CSPA for Married Couples

When she and her husband called me, she thought that she qualified for benefits under CSPA.

Initially, I was skeptical. In every seminar regarding the Child Status Protection Act (CSPA) that I have presented on behalf of the American Immigration Lawyers Association (AILA), my mantra has always been, if you marry, you lose whatever benefits you gained under CSPA.

Still I listened to what she had to say, and in the end, I agreed with her.

She and her husband were both physicians, born in India and trained in the U.S. They both would have qualified for permanent residence in the United States years ago except for the long waiting times in the EB-2 category for persons born in India.

Her mother's sister, a citizen of the U.S., petitioned for their family over 20 years ago when she was a child. By the time that their priority date became current in 1999, she had "aged-out" by reaching the age of 21.

A few years later, her mother became a naturalized U.S. citizen, and more recently, the daughter married and had a child.

Is she entitled to benefit under CSPA, or does she have to continue to renew her H-1B status, and wait for her EB-2 priority date to become current?

The first step in resolving this question is to examine the language of the law, specifically section 203(h)(3) of the Immigration and Nationality Act which was added to the law by CSPA:

"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."

It is clear that the daughter was 21 years of age when her parents qualified for permanent residence through her aunt's petition. Therefore, her petition was "automatically...converted" to the 2B category since she was the unmarried adult daughter of a permanent resident. And she was entitled to "retain the original priority date issued upon receipt of the original petition", which was submitted in 1986.

Yes, I am very aware of the recent decision issued by the Board of Immigration Appeals in Matter of Wang, 25 I&N Dec. 28 (BIA 2009) which disagrees with the above analysis. However, as I explained in a previous blog entry, I believe that the decision in Matter of Wang is clearly erroneous and not entitled to deference by the Federal Courts. See


http://carlshusterman.blogspot.com/2009/07/bias-cspa-decision-not-entitled-to.html

Therefore, let's assume that the Federal Courts will invalidate the holding in Matter of Wang and continue with our analysis.

When the physician's mother naturalized, the "appropriate category" under section 203(h)(3) changed from the 2B category to the family-based 1st preference category (unmarried adult sons and daughters of U.S. citizens) and the priority date remains the same. Why?

Because the USCIS' regulations at 8 C.F.R. 204.2 provide, in pertinent part, that upon the "petitioner's naturalization...a currently valid petition according preference status under section 203(a)(2) of the Act for the unmarried son or daughter over twenty-one years of age shall be regarded as having been approved under section 203(a)(1) of the Act."

Yet, the question remains, what happens to the priority date when the daughter married?

Again, 8 C.F.R. 204.2 which concerns the "automatic conversion of preference classifications" provides, in pertinent part, that "A currently valid petition previously approved to classify the beneficiary as the unmarried son or daughter of a United States citizen under section 203(a)(1) of the Act shall be regarded as having been approved for preference status under section 203(a)(3) of the Act as of the date the beneficiary marries".

Therefore, the daughter is entitled to her original 1986 priority date and her category "automatically converts" from the 4th preference category to the 2B category (when her parents obtained permanent residence), then to the 1st preference category (when her mother naturalized) to the 3rd preference category (when the daughter married).

If we are retained, we will prepare applications for adjustment of status for both the daughter and her husband. We realize that the USCIS is bound by the holding in Matter of Wang to deny these applications.

However, when this occurs, we will ask a Federal Judge not to defer to Matter of Wang, but to apply the clear language of the law to this matter, and to order the USCIS to grant adjustment of status to our client and her husband.

12 comments:

  1. I will like to get more information about this, because i have two children in this position

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  2. I also would like to know this outcome because I have a case similar to this. The daughter was 1 of 5 children in 1992, LPR father petitioned. Daughter was the only one who never received notice to adjust. Daughter married and 3 years ago father became U.S. citizen. Daughter was denied adjustment because of marriage and is now in deportation. I agree with the above analysis which is what I argued in my MTR.

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  3. I have a case like this pending in the San Francisco Immigration Court, except the client married prior to her father's naturalization.

    I argued that the automatic conversion takes place at the time the IJ makes a determination that the derivative beneficiary is over the age of 21 years for CSPA purposes (rather than focusing on a series of conversions).

    Also, I pointed out that the regulations discussing automatic termination make no reference at all to any act of the derivative. I believe this is why a derivative may marry, divorce, and then again become a derivative of a petition. The focus is always on the state of affairs at the time of adjudication. So, the marriage prior to naturalization did not operate to terminaate the petition and it still converted from a 4th preference (derivative) to a 3rd preference (principal) at the time of the age determination.

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  4. excellent article....however, what's the success rate of cases which either applied the clear language of the law or challenged the 'Matter of Wang'

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  5. how gurantee are you in getting this cspa conversion and rentension of priority date to take effect

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  6. Brilliant Carl. I have two cases like this. One of them has a slight variant. Mother filed I-130 for unmarried son, who had a minor child. Priority date was moving along and then father married a USC and immigrated through USC, leaving the mother's I-130 in the dust. Can daughter use father's original priority date for an EB petition? Priority date would likely be current.

    Jan Pederson

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  7. I was the derivative of F-3 category, we are waiting for a visa number (in 5 months aprox), I got married but I am getting a divorce. Can I retain priority date if I get divorce or even married if my father file a i-130 for me?
    Could you help me?

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  8. Same thing happened to me. First I got aged out and then I got married waiting my fathers "Following to join beneficiary" petition. I dont know is there a way to preserve priority date when my father become citizen n file again for me.
    1--Father's EB-3 I140 - Feb 2003 priority date
    2--Filed I 485 in January 2004 along with I 824 for me, adjusted their PR in Sept-2007
    3--Didn't know status of my I 824 yet, meanwhile i got married and havent heard anything from NVC yet for my I 824.

    any one has any idea/comment, what can i expect in this scenario

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  9. Marrying in the United States using the adjustment of status process is one of the most common ways couples can ensure they can stay together and still get their Marriage Visa. It is very important you understand this adjustment of status process, otherwise your Marriage Visa may get denied.

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