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.

45 comments:

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

    ReplyDelete
    Replies
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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.

    ReplyDelete
  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.

    ReplyDelete
  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'

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

    ReplyDelete
  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

    ReplyDelete
  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?

    ReplyDelete
  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

    ReplyDelete
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  17. I Was Diagnosed With Herpes 8 Year Ago I lived In Pain, With The Knowledge That I Wasn't Going To Ever Be Well Again I Contacted So Many Herbal Doctors And Also Visited Hospitals All In Vain My Condition Never Got Better I Was Determined To Get Cured, So One Day As I Was Browsing True The Internet I Saw A Past About This Particular Woman (Wilshere Stancy) Posted On How Dr Iyoha Saved Her From The Virus With Herbal Medicine I Decided To Contact Dr Iyoha On His Email Address: driyohasolutiontemple@gmail.com We Spoke On The Issue I Told Him All That I Went Through And He Told Me Not To Worry That Everything Will Be Fine Again So He Prepared The Medicine And Sent It To Me And Told Me On How To Use It,After 2 Weeks Of Usage I Went To See Doctor For Test ,Then The Result Was Negative,Am The Happiest Woman On Earth Today..Thanks To Dr Iyoha God Bless You, You Can Also Reach Him With This Details;

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  18. I have been in relationship with my boyfriend for 2 year now and we were planning to get married soon and all of a sudden he left me for another girl, i really love this guy and never can imagine my life without him. I further tried all my best to get him back but all my effort to get him back in my life did not work out. It was on this faithful day, i came across some comments on a website about this great spell caster called Dr Ogudugu, so many persons claimed that he help them to renew their relationship and bring their ex back, i had to contact him because he was my last hope. I contacted him through his email and he assured me that in two days time my boyfriend is going to leave the other girl and come back to me and it was a very great surprise to see my boyfriend coming back to me after two days. I am so very happy today that he came back to me and i achieved this with the help of Dr Ogudugu, and i advice if you need his help too, you can email him on his direct email address greatogudugu@gmail.com or for easy communication contact him on whatsApp him +2348139793075

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  19. God bless Dr. ozman for his marvelous work in my life, I was diagnosed of HIV since 2010 and I was taking my medications, I wasn’t satisfied i needed to get the HIV. out of my system, I searched about some possible cure for HIV i saw a comment about Dr. ozman, how he cured HIV with his herbal medicine, I contacted him and he guided me. I asked for solutions, he started the remedy for my health, he sent me the medicine through UPS SPEED POST. I took the medicine as prescribed by him and 8 days later i was cured from HIV,thank you dr.ozmanspellhome@gmail.com Dr ozman ONCE AGAIN THANK YOU SIR contact him whatsapp number +2349061515609
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    ReplyDelete
  21. i was scam several time not until i meant this doctor called Dr. Yakubu who cured me completely, some times we just need to give a try of herbal Medicine to see for our self. I am very happy today that i do not listen to what people say if not i would have been a dead person by now. I was infected with HERPES SIMPLEX VIRUS in 2015, i went to many hospitals for cure but there was no solution, so I was thinking how can I get a solution out so that my body can be okay. One day I was in the river side thinking where I can go to get solution. so a lady walked to me telling me why I am so sad and i open up all to her telling her my problem, she told me that she can help me out, she introduce me to a doctor who uses herbal medication to cure HERPES SIMPLEX VIRUS and gave me his email, so i mail him. He told me all the things I need to do and send me the herbal medicine through courier service and also give me instructions to take, which I followed properly. Before I knew what is happening after 3 to 4 days the HERPES SIMPLEX VIRUS that was in my body got vanished and blister dried off . I went to the hospital for a test and it was negative. this man is real and he is the solution to herpes virus. so if you are also heart broken and also need a help, you can also email him dryakubuherbalhealingclinic@gmail.com

    ReplyDelete
  22. GOD has certainly lead me here this hour because before sharing this I prayed he lead me to site where my testimony will become blessing to people lives. I found out 4years ago that I was infected with HIV because I was engaged to a man that i knew I should have never had in my life. Like most of us here the HOLY SPIRIT was warning me but I decided to do what I wanted . He never came out to tell me he had it I just happened to go through some old stuff he left at my house and there some antiviral meds appeared . I got checked and was diagnosed. It instantly felt like agony!!! The enemy tempt me with suicide,depression and all kinds of unhealthy emotion. I was looking for love in all the wrong places and people. The enemy kept speaking to me that my life was over.. But one day I quickly with tears in my eyes prayed to GOD for healing. And GOD showed me a vision that my cure is in nature I woke up prayed over it, gradually I started having passion for herbs then gradually I started using for treatment. One evening I think early February this year after my evening prayer I was on a site on herbal remedies for STD and a page was telling possible cure for herpes, then on peoples comments I saw testimonies of people telling how same DR yakubu have successfully cured them of herpes and he cured all manner of STD including HIV. I copied his contact.. .... That same night in my dream I was in the doctor office and the doctor telling me there’s been a mistake THAT I’M FREE FROM ANY DISEASE in my body. I woke up the next morning and prayed over it then contacted DR YAKUBU who immediately responded to me he talked to me and assured me of permanent cure if I finish taking certain quantity of his meds of which I ordered for immediately and started use. Within few weeks of use I noticed total relieved in my body system then went for a test and was confirmed negative and another test and the result was same. Glory be to GOD who cured me as he promised. God is real and he still saves humans through fellow humans. Reach DR YAKUBU through his e-mail;dryakubuherbalhealingclinic@gmail.com

    ReplyDelete

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  35. Thanks to Doctor AGBOMIAN for the Great miraculous work he did in my life with his herbal remedy. I have been living with this virus and I have shared with my partners my situation because they deserve to have a choice of whether they want to change being with me or not. I unfortunately did not have a choice in this matter leaving me vulnerable and now faced with this virus for the rest of my life or until a cure was discovered.I refused to take the Medical drugs my PCD have told me to take, I surrendered to my fate, because I was careless. Late on at night, Feb 13 2017, I came across Doctor AGBOMIAN herbal medicine. I browsed about the authenticity of This Doctor, I got to see several Testimonies regarding his works from people he had helped with his medicine. i reached out to him and told him my problems, after we spoke he promised to help me out. I started using his herbal medicine which he sent to me Via the Courier Delivery, and asked me to take the herbal medicine for 18 days. which i did. I am delighted to let you all know that I Got cured of Herpes Virus, after the Medical Doctor had confirmed this with the test results, when I went for a medical check up after completing the Herbal Dosage Of 18 days. Doctor AGBOMIAN Reach out to Doctor AGBOMIAN via email : dragbomianherbalcured77@gmail.com

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  36. Must read! My names are Nicoline Nielsen from US taxes, for a year now i have been living with this virus called HEPES VIRUS and i have been taking some medications from my Doctor and there was no improvement, All thanks to God almighty for using Dr Agbomian for curing my HERPES Virus with the help of his powerful root and herbs...Well i do not have much to say, with all my life i will for ever be grateful to him and God Almighty for using Dr Agbomian to reach me when i thought it is all over, today i am now happy after the medical doctor have confirmed my status Negative, i have never in my life believed that HEPES could be cure by any herbal medicine. so i want to use this medium to reach other persons who is suffering from any deadly disease you can contact Dr Agbomian on his email dragbomianherbalcured77@gmail.com

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  37. 2 WEEKS AGO I ENDED NATURAL HERBAL TREATMENT FROM TRADITIONAL HEALER WHO IS IN AFRICAN, I GOT RID OF HERPES VIRUS OUT OF MY BODY WITH HIS HERBAL TREATMENT. It SO AMAZING I'M FREE FROM THIS VIRUS FOREVER. YOU CAN REACH HIM ON; DRAGBOMIANHERBALCURED77@GMAIL.COM

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  43. I want to share a testimony, how i was cured from Herpes by DR AGUGU with his herbal remedy. I don't know where to start, I'm 33 years old and i was diagnoses of genital herpes diseases for 5 years. i lost all hope in life but on like any other i still searched for a cure even on the internet and i saw a comment were a lady testify how she was cured by Dr AGUGU i could not believe it at first, i contacted him, He sent me his herbal remedy i used it for 2 weeks and the Herpes virus was cured completely. I went for medical check and the result was negative from Herpes.
    For those who have the same problem, or any STD should contact Dr AGUGU via email: agugusolutionhome@gmail.com you can also call or WhatsApp +2349123794867

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