The Child Status Protection Act, Section 3 [INA § 203(h)] - An Update Regarding Retention Of Priority Date Provision
This is an updated article based on the recent development. The Board of Immigration Appeals (BIA) recently issued a decision on June 16, 2006, Matter of Garcia, A79 001 587 (BIA June 16, 2006), which specifically addresses an issue of seminal importance that arises under CSPA § 3-codified as INA § 203(h), 8 USC § 1153(h). Although the BIA decision is not designated as a precedent decision, at least not yet, it is still a persuasive word in the form of an appellate decision that addresses an interesting and useful issue as to the meaning of § 203(h), Paragraphs (1) and (3). It is important because despite the fact FSIA was passed on August 6, 2002, so far there is no guidance or direction from either the USCIS or the DOS on the coverage or reach of § 203(h), Paragraph (3), which creates a very useful substantive right in the form of retention of an earlier priority date for many beneficiaries or derivative beneficiaries.
This BIA decision was issued in the context of removal proceedings against an alien who claimed eligibility under both § 203(h)(1) and § 203(h)(3). First, let us analyze the facts of Matter of Garcia. There, the respondent, a 32-year old native citizen of Mexico, claimed that she was eligible to adjust her status pursuant to INA § 245(i), because she claimed that a visa was immediately available to her as a derivative beneficiary of a visa petition, filed in 1983, that classified her mother as a fourth-preference family-based immigrant (as the sister of a U.S. citizen).
She argued that her aunt (mother's sister) filed a visa petition for her mother on January 13, 1983, when she was 9 years old. Visa numbers became available to her mother and her family in June of 1996 (precisely speaking, on June 1, 1996), when she was 22 years old. Although she was now 32 years old, she first asserted that she was her mother's "child" for the purpose of establishing her derivative status under the 1983 petition for her mother, pursuant to INA § 203(h)(1), which is the first paragraph in CSPA § 3. The BIA applied the main formula for determining an alien's eligibility for benefits under § 203(h)(1), and rejected her argument by ruling that her "age for purposes of section 203(h)(1) is equal to her actual age on the date when a visa number became available to her mother, reduced by whatever number of days that comprised 'the period during which the applicable petition … was pending.'" The BIA then concluded that applying this "formula to this set of facts yields the conclusion that the respondent is 22 years old (i.e., her age in June of 1996 (22 years)), reduced by the number of days in the period during which the visa petition was pending (i.e., 0 days). Accordingly, the respondent is no longer deemed to be her mother's "child" for purposes of establishing her status as a derivative beneficiary of her mother's visa petition." (slip op., page 3.)
Thus, BIA rejected her first assertion that was based under § 203(h)(1). In this regard the BIA also explained the meaning of the statutory phrase "the period during which the applicable petition … was pending." The alien claimed that this language refers to the period of time between the filing of the visa petition and the date when a visa number became available to her mother. The BIA rejected that claim and held that "in fact, the relevant period is the period between the filing of the visa petition and its approval [emphasis added]; a visa petition that has been approved by the DHS is no longer 'pending' for any purpose within the meaning of the CSPA. … The CSPA was not intended to override … annual numerical limits or otherwise alter the preference allocation for family-sponsored immigrants, which are set by statute." Id.
The BIA then addressed respondent's second assertion under INA § 203(h)(3), which enacts a special "Retention of Priority Date" rule and provides that 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. This is the provision that has baffled many practitioners, for its language is not susceptible to an easy interpretation.
In my previous article on CSPA provisions, I remarked that the language of § 203(h)(3) tends to create some confusion as to who is eligible and who gets the benefit of retaining the earlier priority date. The confusion is whether any alien child falling in any of the preference categories is eligible, or it is just for the family-based 2nd preference category aliens. I also remarked that there was no final or definitive guidance from the Central Office of the USCIS as to the meaning of the statutory language and that one would be well advised to seek legal counsel. Obviously, there cannot be any doubt that the retention of priority date provision in § 203(h)(3) confers a distinct advantage to an eligible beneficiary child because he or she would be able to recapture "the original priority date" of "the original petition." Although there is still no definitive guidance that only a precedent decision or a Central office Memorandum to all USCIS offices can offer, we have at least one higher authority (BIA) that has come out openly and in unmistakable language with the interpretive contours of § 203(h)(3).
In Matter of Garcia, the Immigration Judge had focused on the respondent's eligibility for a visa number through the petition that her mother had filed in 1997 after becoming a lawful permanent resident through the 1983 fourth-preference petition that was filed by her U.S. citizen sister, and ruled that § 203(h)(3) was inapplicable because the CSPA, from which section 203(h)(3) is derived, was not intended to apply retroactively to petitions filed before the enactment of the CSPA on August 6, 2002. The BIA ruled that "the respondent's entitlement to a visa number under § 203(h)(3) does not derive from the 1997 visa petition, but rather from the original 1983 petition, which is "automatically …. converted" to a second-preference petition upon an administrative decision that she is 21 years old or older for purposes of § 203(h)(1)." Id. at 4.
Furthermore, the BIA quoted the language of CSPA § 8, which declares that the amendments made by CSPA "apply to any alien who is a …. beneficiary of …. a petition for classification under section 204 of [INA] …. approved before [August 6, 2002] but only if a final determination has not been made on the beneficiary's application for an immigrant visa or adjustment of status …." The respondent was a listed derivative beneficiary in the 1983 fourth-preference petition for her mother, "which was approved prior to August 6, 2002, and the respondent's subsequent application for adjustment of status was filed with the DHS in 1997 but remained pending until 2004, after the CSPA had become effective. Thus, the BIA ruled that § 203(h)(3) was applicable with respect to the respondent's original adjustment application and remains effective to the renewed application that was filed in removal proceedings.
The BIA thus concluded that an immigrant visa number is available to the respondent in the second preference category by virtue of INA § 203(h)(3), sustained the appeal and vacated the Immigration Judge's decision.
The clear and unmistakable import of the BIA decision is that where an alien child is a derivative beneficiary under a principal beneficiary of any preference petition, and is determined to be 21 years of age or older and has therefore become ineligible for the benefit of § 203(h)(1), he or she may nonetheless be eligible for retaining the earlier priority date of the original petition that enabled the original principal beneficiary become a lawful permanent resident.
The principal beneficiary may then file a relative petition for the derivative beneficiary who would then fall under the second preference category as an unmarried son or daughter of the principal beneficiary.
Further, since the statute commands that the earlier fourth-preference petition shall be automatically converted to an appropriate category, and as the BIA has explained, the appropriate category would be the second preference category, the final legal construct by virtue of § 203(h)(3) is that the beneficiary is then allowed to retain the original priority date issued upon receipt of the original fourth-preference petition.
There is one more potential issue as to the meaning of the statutory language in § 203(h)(3) ("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.") If the word "automatic" has its regular and ordinary dictionary meaning, then it means that the conversion to any other appropriate category occurs "spontaneously or unconsciously," in a "wholly involuntary" manner. See Webster's Collegiate Dictionary. Indeed, the case law on the principles of statutory interpretation is legion that in the absence of any clear indication to the contrary in the statute, it is the ordinary and regular meaning of any word that applies. In this sense, there is no escape from the conclusion that any original petition stands automatically converted to any appropriate category by operation of law, such that no affirmative agency action would be necessary or should be required to effect such a conversion. However, as a practical matter, this result has to come from any authoritative source (an administrative precedent decision, or a federal court decision, or a regulation), so as to have any implementing mechanism in place. I hope the BIA decision in Matter of Garcia will spur the USCIS and/or DOS to issue a definitive guidance on this issue.
1 I had written it on the heels of the passage of the CSPA, and, to my knowledge, it was the first of its kind published anywhere.
About The Author
Pravinchandra J. Patel, Esq. can be reached at 1554 Sherwood Drive, East Meadow, New York 11554; (516) 565-2665; email: LRBPJP@aol.com. For over two decades, he has authored/compiled and regularly updated source materials for fellow immigration attorneys through his immigration books, see http://www.usimmigrationbooks.com. The opinion and information expressed in this article is not intended to provide guidance in any specific case or to any individual. Rather, it is intended for general information, and is subject to change in the future, if necessary, to reflect any subsequent contrary policy decision or guidance by BCIS.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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