BIA Rules Favorably On "Automatic Conversion" Provision In CSPA
In “Pushing The Envelope With The Child Status Protection Act ” (November 14, 2003), this writer explored an intriguing provision, Section 3 of the Child Status Protection Act (CSPA), codified at Section 203(h)(3) of the Immigration and Nationality Act (INA), which states:
“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.”
Section 203(h)(3) allows derivative children who cannot take advantage of the CSPA to be able to automatically convert to the “appropriate category” and allow the alien to retain the original priority date.
The prior article noted the example of a sibling of a US citizen who is sponsored under the Family-based Fourth Preference (F-4) category pursuant to INA Section 203(a)(4). The US citizen brother or sister filed an I-130 petition for the sibling parent overseas several years ago. After the passage of many years (usually, over 10 years for an F-4 petition), the sibling parent obtains permanent residence upon the visa becoming available.
Unfortunately, the derivative child may not qualify because he or she is already over 21 years of age at the time of visa availability and is unable to take advantage of the age protection formula under the CSPA. For instance, such a person is over 21 years at the time or visa availability and is unable to bring his/her age under 21 years by subtracting the number of days the I-130 petition remained pending. Another circumstance under which this child can be deprived of the protection of CSPA is if he or she did not seek permanent residency within one year of visa availability. 
When a child is unable to take advantage of the CSPA for the above reasons, the parent who has acquired legal permanent residence may file a new I-130 petition on behalf of the child under the Family-Based Preference (2B) pursuant to INA Section 203(a)(3). The wait under the new Family-based 2B preference (adult children of permanent residents) can be about ten years, which would be intolerable after the aged-out child waited even longer, and in vain, for the F-4 petition to materialize.
Fortunately, Section 203(h)(3) suggests that the child should automatically be able to convert under the Family-based (2B) preference and retain the priority date of the old F4 petition filed by the US citizen sibling on behalf of the parent.
This interpretation was recently confirmed in an unpublished decision by the Board of Immigration Appeals (BIA). In Matter of Garcia, A789-001-587 (June 16, 2006) (http://www.bibdaily.com/pdfs/Garcia%20web1034.pdf), the BIA addressed what the “appropriate category” for the automatic conversation would be in the case of a derivative beneficiary. The Board determined that “where an alien is classified as a derivative beneficiary in the original petition, the ‘appropriate category’ for purposes of section 203(h)(3) is that which applies to the ‘aged-out’ derivative vis-à-vis the principal beneficiary of the original petition.” 
In Garcia, the Respondent’s parent was sponsored by her US citizen sister under the F-4 preference in 1983. Although the visa became available to the mother who adjusted her status to permanent residency in 1997, the Respondent was not able to adjust her status as a derivative as she aged out even though she had filed an adjustment of status application prior to turning 21 years. Respondent’s parent filed a Family-based 2B petition after she became a permanent resident in 1997. Respondent was placed in removal proceedings when she was well over 21 years and she renewed this unadjudicated adjustment application in removal proceedings. In order to defend herself in removal proceedings, the Respondent needed to establish that a visa number was immediately available.
The BIA agreed with Respondent’s argument that even though she had aged out, a visa was immediately available to her as she had been automatically converted to the Family 2B classification and that she had also retained the original priority date of the F4 petition, which was filed way back in 1983. Thus, a visa number was immediately available and she could, therefore, adjust status as a defense against removal. The BIA seemed to also suggest that there was no need to file a new I-130 petition under the Family 2B preference, even though one was filed in Garcia, since Section 203(h)(3) provided for automatic conversion to the appropriate category.
Although the government argued that the CSPA should not retroactively apply to the Respondent – the mother obtained legal permanent residence way before the effective date of the CSPA on August 6, 2002 and Respondent was over 21 by then – the BIA noted that the CSPA retroactively applied to any person who is a beneficiary of a petition approved before August 6, 2002 and if no final determination has been made on the adjustment application.< Since the Respondent’s adjustment application had been filed in 1997 and remained pending until 2004, after the CSPA had become effective, the BIA held that Section 203(h)(3) applied to the Respondent.
This writer applauds the BIA’s decision in Garcia as it is a reasonable interpretation of Section 203(h)(3), and is also the first from a government agency after the enactment of the CSPA. However, it appears that a pending immigrant visa or adjustment of status application is required post-August 6, 2002, especially if the child aged out before August 6, 2002. In Garcia, the Respondent who had aged out before August 6, 2002, was fortuitous to have filed an adjustment application before she turned 21 and which remained unadjudicated until she was put into removal proceedings. Most will not be so fortunate.
On the other hand, Section 203(h)(3) ought to readily apply to a child who has aged out on or after August 6, 2002 even if no adjustment or immigrant visa application was filed. If the child aged out prior to August 6, 2002, he or she must have applied for an immigrant visa or adjustment of status like the Respondent in Garcia.
While Garcia is not a precedent decision, the holding can still be advanced to benefit “aged out” children who are not protected by the CSPA but could take advantage of the priority date of the original petition filed on behalf of the parent.
This article originally appeared on www.cyrusmehta.com on September 15, 2006.
1 Section 203(h)(1) of the INA provides that the age of the alien at the time of visa availability can be subtracted by the number of days that the petition remained pending. If the alien child is 21 years and 3 months on the date of the visa availability, and the I-130 petition took over 3 months to get approved, that amount of time can be subtracted from the child’s age to bring him or her under the age of 21 years.
2Section 203(h)(1) further provides that the alien must seek permanent residence within one year of visa availability.
3See Mary A. Kenney, 2006 Update On The Child Status Protection Act: New Administrative Interpretations, Practice Advisory, American Immigration Law Foundation (www.ailf.org).
4 CSPA Section 8. See Also Department of State cable dated January 3, 2003 (03 State – 015049) and Immigration and Naturalization Service memo dated February 14, 2003 (HQADN 70/6.1.1).
About The Author
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City and is the managing member of Cyrus D. Mehta & Associates, P.L.L.C. He is Past Chair of the Board of Trustees of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York and former Chair of the Committee on Immigration and Nationality Law of the same Association. The views expressed in this article do not necessarily represent the views of ABCNY or AILF. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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