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.

BIA's CSPA Decision Not Entitled to Deference

At least six federal lawsuits are pending which challenge the USCIS' interpretation of the "automatic conversion" clause of the Child Status Protection Act (CSPA) of 2002. In one of these lawsuits, Costelo v. Chertoff, a Federal Judge has certified a nationwide class of family-based derivative beneficiaries.

We link to each of the cases referred to in this article from our "CSPA" page at

http://shusterman.com/cspa.html
The question addressed by this article is how much, if any, deference, should the Federal Courts give the BIA's recent decision interpreting CSPA's automatic conversion clause. Matter of Wang, 25 I&N 28 (BIA 2009).

The automatic conversion clause of CSPA is section 203(h)(3) of the Immigration and Nationality Act as amended. In order to understand the meaning of this clause, it is important to read and understand the meaning of section 203(h) of the Act:

203(h) RULES FOR DETERMINING WHETHER CERTAIN ALIENS ARE CHILDREN -

(1) IN GENERAL.-- For purposes of subsections (a)(2)(A) and (d), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) 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), 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), a petition filed under section 204 for classification of an alien child under subsection (a)(2)(A); or

(B) with respect to an alien child who is a derivative beneficiary under subsection (d), a petition filed under section 204 for classification of the alien's parent under subsection (a), (b), or (c).

(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), 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.

Since section 203(h)(3) refers to "subsections (a)(2)(A) and (d)" of section 203, it is also necesssary to read and understand both of these sections of law.

Section 203(a)(2)(A) provides as follows:

(a) Preference Allocation for Family-Sponsored Immigrants. - Aliens subject to the worldwide level specified in section 201(c) for family-sponsored immigrants shall be allotted visas as follows:

(2) Spouses and unmarried sons and unmarried daughters of permanent resident aliens. - Qualified immigrants -

(A) who are the spouses or children of an alien lawfully admitted for permanent residence.

In simple English, this section of law refers to spouses and children of permanent residents who are petitioned under the family-based 2A category.

Section 203(d) provides as follows:

Treatment of family members

A spouse or child as defined in subparagraph (A), (B), (C), (D), or (E) of section 101(b)(1) shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.

In simple English, section 203(d) states that spouses and children of principal beneficiaries of visa petitions are entitled to permanent residence in the same category as the principal. In other words, if a U.S. citizen brother petitions his sister for a green card, not only does the sister obtain permanent residence in the family-based fourth preference category, but her husband and children also qualify under the same category. Or if a person qualifies for a green card through employment or through the visa lottery, his spouse and children also qualify under the same category as the principal.

Section 101(b)(1) defines "child" for purposes of immigrating to the U.S. In general, a child is defined as a person who is under 21 years of age and who is unmarried.

Spouses and children under section 203(d) who are accompanying or following to join the principal beneficiary of a visa petition or the winner of the visa lottery are commonly referred to as "derivative beneficiaries".

In Matter of Garcia (2006), an unpublished decision of the Board of Immigration Appeals (BIA), the Board considered the case of Maria Garcia, a "derivative beneficiary" who was born in Mexico. On January 13, 1983, Maria's mother was petitioned as the sister of a U.S. citizen. At that time, Maria was only nine years old.

Under section 203(d), Maria was a derivative beneficiary who would have been eligible to become a permanent resident along with her mother as long as she remained a "child", that is, unmarried and under 21 years of age. However, by the time that visa numbers became available to Maria and her mother in 1996, Maria was 22years of age. In common parlance, she had "aged-out". By 1996, the only relief that was available to Maria was for her permanent resident mother to submit a visa petition on Maria's behalf under the 2B category for unmarried adult sons and daughters of lawful permanent residents. Maria's mother did just that in 1997.

However, Maria was placed in deportation proceedings, and by the time her case was decided by the BIA on June 16, 2006, visa numbers were available in the Mexican 2B category only to persons whose lawful permanent resident parent(s) had petitioned for them before October 22, 1991, a 15-year wait.

Under the law as it existed prior to CSPA, Maria would have had to wait in line for a green card twice. First, she waited from 1983 to 1996, a period of 13 years for a family-based 4th preference visa number to be current. However, she was no longer a child under section 101(b)(1) because she had reached the age of 21 before her visa number became current in 1996. Therefore, she lost her place in line for a green card. When her mother petitioned for her in the 2B category in 1997, she would have had to go to the back of a 15-year line and be separated from her mother until 2012. Furthermore, if Maria married prior to immigrating in 2012, the visa petition would automatically terminate. By then, she would be 38-years-old.

The unanimous BIA panel which decided her case in 2006 held that CSPA's automatic conversion clause applied to Maria Garcia. The Board held that Maria was no longer a "child" for purposes of section 203(h)(1) since she was 22 years of age when her visa number under the family-based fourth preference category became current, and since the visa petition was approved the same day that it was submitted, no time could be subtracted from Maria's age under CSPA.

Because she was still a "derivative beneficiary" under section 203(d) except that her age was more than 21 years old, the Board held that she qualified for automatic conversion of her visa petition under section 203(h)(3). They then addressed the question of what was the "appropriate category" that the visa petition should be "converted" to. The Board held as follows:

"The respondent was (and remains) her mother's unmarried daughter, and therefore, the 'appropriate category' to which her petition was converted is the second preference category of family-based immigrants, i.e., the unmarried sons and daughters of lawful permanent residents. Furthermore, the respondent is entitled to retain the January 13, 1983, priority date that applied to the original fourth-preference petition, and therefore a visa number under the second-preference category is immediately available to the respondent.

The Board, in Matter of Garcia, did not find the statutory language of section 203(h)(3) ambiguous. Since this section of law specifically applies to derivative beneficiaries as defined by section 203(d), the Board found that Maria Garcia was entitled to benefit from the automatic conversion clause. They remanded the case to the Immigration Judge to consider her application for adjustment of status.

Three years later, in Matter of Wang, the Board refused to follow the reasoning of Matter of Garcia, held that the language of section 203(h)(3) was ambiguous and ruled that CSPA's automatic conversion clause did not apply to derivative beneficiaries.

This ruling is puzzling to say the least. How can section 203(h)(3) not apply to derivative beneficiaries when it specifically references section 203(d), the section of law which concerns derivative beneficiaries? Matter of Wang essentially deletes this reference to section 203(d) from the statute.

Further, the Board fails to discuss what it finds "ambiguous" in the language of section 203(h)(3). It simply goes on to discuss the legislative history of this section of law when no such legislative history exists.

The starting point of all statutory interpretation is the intent of Congress, and “‘[d]eference to the (agency's) interpretation...is only appropriate if Congress' intent is unclear.’" Padash v. INS, 358 F.3d 1161, 1168 (9th Cir. 2004). Where traditional tools of statutory construction reveal Congress’ intent, “deference is not required at all.”

CSPA Update

A Federal Judge has certified a nationwide class in a challenge to the USCIS's restrictive interpretation of the "automatic conversion" clause in the Child Status Protection Act (CSPA) of 2002. This opens the way for children who have "aged-out" to be reunited with their parents.

The USCIS has resisted implementing this important section of law for the past seven years. Just a few weeks ago, the Board of Immigration Appeals (BIA), in Matter of Wang, adopted the government's restrictive interpretation of the automatic conversion clause.

On July 16, Federal Judge James Selna (Central District, California), over government objections, made his ruling in the case of Costelo v. Chertoff. The lawsuit, which challenges the government's restrictive reading of the automatic conversion clause, had been put on hold for over one year because the government had argued that the issue would soon be decided by the BIA. Our law firm joined in submitting a amicus brief written by Mary Kenney, Esq. on behalf of AILA and AILF supporting the class certification in which we argued that the Court should not give deference to Matter of Wang since the law is clear on its face.

What is the automatic conversion clause?

It consists of a single sentence in CSPA which provides as follows (references to the statute omitted):

"RETENTION OF PRIORITY DATE- If the age of an alien is determined...to be 21 years of age or older..., 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."

What does this mean in practice?

For example, a U.S. citizen petitions his brother and his family including their 10-year-old son in the summer of 1998. By the time that the priority date becomes "current" in 2009, the son has reached his 21st birthday. Even after subtracting the time that the visa petition was pending, he has aged-out.

The government's position is that the father has to re-petition the son under the 2B category (unmarried, adult sons and daughters of lawful permanent residents). This means that despite the family having waited in line for 11 years to get their green cards, the parents would be forced to endure eight years of separation from their son. If the son marries during this eight-year period, the petition would automatically be terminated.

Under CSPA's automatic conversion clause, the son is entitled to the "original priority date" which was in 1998. His 4th preference petition would be "converted to the appropriate category" which, since he is the unmarried son of a permanent resident, is the 2B category. Most persons with a 1998 priority date in the 2B category would be able to immediately immigrate to the U.S.

In terms of complexity, this is far from rocket science.

I wrote an article about the automatic conversion clause shortly after CSPA was signed into law in 2002. Other immigration lawyers subsequently reached the same conclusion. The BIA, in Matter of Garcia (2006), reached the same conclusion. Unfortunately, the Board did not designate Matter of Garcia as a precedent. In terms of statutory analysis, it is very clear that the automatic conversion clause applies to derivative beneficiaries in the family-based, employment-based and diversity lottery categories.

However, despite the clear language of the law, the government stubbornly clings to the view that the automatic conversion clause simply codifies a regulation which applies only to derivative beneficiaries of 2A visa petitions. Surprisingly, a three-judge panel of the BIA was persuaded by this argument in Matter of Wang. The petitioner in Matter of Wang has recently filed a Motion for Reconsideration and Request for En Banc Hearing before the BIA and filed a lawsuit challenging the decision in a Federal Court in Ohio.

In the Costelo class action lawsuit, the petitioners are preparing a motion for summary judgment which will soon be filed with the Court. They will also request a preliminary injunction prohibiting the government from deporting persons who qualify for benefits under the automatic conversion clause.

We are confident that the Federal Courts will allow for this much maligned section of the law to take effect in the near future, thereby benefitting ten of thousands of immigrant families.

Given the irreparable harm suffered by immigrant families over the past seven years, we are very pleased that the matter will be decided by a Federal Judge in the near future. However, we are mindful of the fact that the Costelo class action will not resolve the matter of how the automatic conversion clause applies to derivative beneficiaries in employment-based cases.

This issue is pending before the Board in Matter of Patel. Unless the BIA backs away from its holding in Matter of Wang, another lawsuit may be necessary to resolve this matter.

We link to the class certification and briefs in Costelo from our "CSPA" page at

http://shusterman.com/cspa.html#4

We link to the Motion for Reconsideration and Request for En Banc Hearing in Matter of Wang from

http://shusterman.com/cspa.html#5

BIA Decision Would Separate Families

Today, the Board of Immigration Appeals (BIA) issued a decision which eliminates one of the principal benefits of the Child Status Protection Act of 2002 (CSPA). We believe that this decision is fundamentally flawed and should be overturned.

In Matter of Wang, 25 I&N Dec. 28 (BIA 2009), the Board essentially voids the "automatic conversion" clause of CSPA. That clause deals with persons who age out despite the protections of CSPA. It states that they are entitled to the "original priority date" and should be placed in the "appropriate category".

Despite a plethora of agency memos interpreting CSPA, the government has remained strangely silent about the "automatic conversion" clause. However, an unpublished Board decision, Matter of Garcia (2006) interpreted the clause to mean that when a derivative beneficiary of a petition ages out, they are able to keep the priority date of the original petition filed on behalf of their parents, and that once their parents become permanent residents, the original petition is "automatically converted" to the family-based 2B category since they are unmarried adult sons and daughters of permanent residents. In many cases, this allows them to immediately immigrate to the United States.

In Matter of Wang, a U.S. citizen submitted an immigrant visa petition for her brother and his wife and daughter in China in 1992. However, by the time that the parents became permanent residents in 2005, the daughter had "aged-out" because she was 22 years old and no longer qualified as a child. In 2006, her father submitted a 2B visa petition on her behalf. Since the 2B category is backlogged 8 years, the daughter would be forced to remain separated from her parents until 2014, a total wait of 22 years since the original 1992 priority date. If she marries before she immigrates, she will lose her priority date altogether.

However, under the "automatic conversion" clause of CSPA as interpreted by the Board in Matter of Garcia, she would be able to retain the original 1992 priority date under the 2B category, meaning that she could reunite with her parents immediately.

Today, the Board gave short shrift to the reasoning in Matter of Garcia. The Board found that the statute was "ambiguous" and looked to the legislative history of CSPA.

However, there is no legislative history of the "automatic conversion" clause and the Board construed the law in a way which we believe directly contradicts the clear language of the statute.

While the original CSPA bill was introduced in the House of Representatives in 2001, the "automatic conversion" clause was added the next year in the Senate. The Board recognizes this, yet all of the language as to the purpose of the bill which is referenced in the Board's decision is taken from the 2001 House Report and from individual members of the House of Representatives. Since the original House bill was much less expansive than the final bill, these selective references to the legislative history are highly misleading.

When the Board's decision talks about the injustice of allowing Ms. Wang to "'jump' to the front of the line by retaining a 1992 priority date", we are puzzled. She waited in line from the age of 10 to her 21st birthday only to be separated from her parents for another 8 years. Wasn't this the reason that CSPA was enacted?

The Board also references various USCIS "automatic conversion" regulations and concludes that when Congress approved CSPA, they were aware that such conversions only operate as long as the petitioner remains the same. This is completely false.

Why did the Board ignore the USCIS’ automatic conversation regulation which allows persons to convert from one employment-based preference category to another, and from one petitioner to another, all the while retaining the original priority date?

Consider 8 C.F.R. 204.5(e) which, in pertinent part, states:

“Retention of section 203(b)(1) , (2) , or (3) priority date. -- A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date.”

This regulation permits an employer to petition a person in the EB-3 category. Once the I-140 is approved, if the person changes employment, another employer may sponsor the person in the EB-2 category. Once the second I-140 is approved, the person may immigrate/adjust under the EB-2 category while retaining the “original” EB-3 priority date.

Of course, Matter of Wang, unlike Matter of Patel, the CSPA automatic conversion case which the Board has yet to decide, involved only family-based petitions. Yet, surely Congress was aware of an immigration law which allows for the automatic conversion between family-based and employment-based petitions, between different petitioners and which allows beneficiaries to retain their original priority dates.

Consider the savings clause in the 1976 immigration law which allows persons to retain Western Hemisphere Priority Dates (WHPDs) even though the original petition may have been employment-based while the latter petition is family-based. Someone with an employment-based WHPD of 1971 may be the beneficiary of a Mexican family-based third-preference petition (submitted by a U.S. citizen father for a married daughter) submitted on June 1, 2009. Instead of waiting the usual 18 years for the priority date to become current, the daughter and her family are permitted to use the 1971 original priority date to immigrate immediately.

It is clear that USCIS regulations permit persons to change jobs, preference categories and petitioners, and use the original priority date to become permanent residents. Also, Congress has long permitted persons to change between the employment and family-based categories, use the original priority date, and immediately immigrate to the U.S. Thus, the “automatic conversion” clause in CSPA is neither unique nor novel.

In Matter of Wang, the Board adopts the USCIS' tenuous argument that the "automatic conversion" clause was added to CSPA simply to codify 8 C.F.R. 204.2(a)(4), a decades-old regulation which allows a child whose parent was petitioned by their spouse under the 2A preference category to retain the original priority date when the child turns 21 and the LPR parent submits a new visa petition under the 2B category. Does the legislative history of CSPA support this interpretation? Matter of Wang is silent on this issue.

The reason why Matter of Wang should be overturned is that it contradicts the clear language of CSPA. The "automatic conversion" clause states that it applies to aliens who are "21 years of age or older for purposes of subsections (a)(2)(A) and (d)" of 8 U.S.C. 1153. Subsection (d) refers to spouses and children who are accompanying or following to join spouses or parents under the family-based, employment-based or diversity lottery categories. Any interpretation which attempts to restrict the applicability of the "automatic conversion" clause to a narrow subset of the family-based preference categories, and ignores the other family-based categories, the employment-based categories and the diversity category is clearly at odds with the statute.

Currently, there are at least five lawsuits in Federal Court challenging the government's restrictive interpretation of the "automatic conversion" clause of CSPA. How they will be affected by Matter of Wang remains to be seen.

How much deference should the Federal Courts accord to the Board’s interpretation of CSPA’s “automatic conversion” clause in Matter of Wang?

This would not be the first time that the Federal Courts overturned an overly-restrictive interpretation of CSPA put forward by the government. The Board and the USCIS eventually acceded to the interpretation of another disputed section of CSPA following the holding of Padash v. INS (9th Cir. 2004), 358 F.3d 1161:

“Because the legislative history makes it clear that the Act was intended to address the often harsh and arbitrary effects of the age-out provisions under the previously existing statute, our interpretation of the term “final determination” also adheres to the general canon of construction that a rule intended to extend benefits should be “interpreted and applied in an ameliorative fashion.” Hernandez, 345 F.3d at 840. This rule of construction applies with additional force in the immigration context “where doubts are to be resolved in favor of the alien.”

To read the complete text of Matter of Wang as well as a host of other materials relating to CSPA and the continuing litigation, see
http://shusterman.com/cspa.html