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How "Age-Outs" Can Benefit under CSPA

by Carl Shusterman

Can sons and daughters who are derivative beneficiaries of an approved visa petition who have "aged-out" obtain benefits under the Child Status Protection Act (CSPA)? If so, is this true even if they have yet to apply for adjustment of status? In my opinion, and from the clear language of the law, the answer is yes. However, in the absence of CIS regulations or interpretations of the "age-out" provision of CSPA, someone who would benefit from this statute needs to step forward to claim what is rightfully theirs.

Section 3 of CSPA amends section 203(h)(3), INA as follows:

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.'.

Here is how I believe that this section is intended to work: A daughter has waited many years to adjust her status together with her parents under her citizen uncle's approved family-based fourth preference for her father. By the time that the priority date becomes current, she has aged-out. Under section 3 of CSPA, the "original priority date" means the priority date of the uncle's fourth preference petition. The "appropriate category" is the family-based 2B category since the daughter is the unmarried, adult daughter of a permanent resident father. Using the original priority date under the 2B category gives the daughter a "current" priority date and allows her to adjust her status under section 245(i).

I wrote an article about this issue many years ago, and other immigration attorneys subsequently wrote articles agreeing with this interpretation. However, the CIS has never addressed this question.

Last summer, the Board of Immigration Appeals (BIA), in a unanimous decision called In re Maria T. Garcia, agreed with this interpretation of section 3 of CSPA.

Unfortunately, the BIA did not designate this case as a precedent decision. Therefore, although it is persuasive, it is not binding upon the CIS, the agency which decides petitions under CSPA. In re Maria T. Garcia involved an approved visa petition and an adjustment application which was filed prior to the enactment of CSPA (August 6, 2002), but which remained pending long after CSPA was enacted. Since CSPA was enacted almost five years ago, few applicants today have cases involving adjustment applications submitted prior to August 6, 2002. Does section 3 of CSPA apply to derivative beneficiaries of immigrant visa petitions approved prior to the enactment of CSPA if their applications for adjustment of status were submitted after CSPA? A recent BIA precedent decision provides a basis for answering this question in the affirmative.

In re Rodolfo AVILA-PEREZ, Interim Decision #3551 (BIA, February 9, 2007), interprets the section 8 of CSPA which determines the effective date of the statute. Section 8 states that

The amendments made by this Act shall take effect on the date of the enactment of this Act and shall apply to any alien who is a derivative beneficiary or any other beneficiary of-- (1) a petition for classification under section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) approved before such date but only if a final determination has not been made on the beneficiary's application for an immigrant visa or adjustment of status to lawful permanent residence pursuant to such approved petition.

In interpreting this provision of law, the Board stated:

"We conclude that section 8(1) of the CSPA, as enacted, does not require an individual whose visa petition was approved before its effective date to have an adjustment application pending as of the date of its enactment."

We conclude that combining the Board's reasoning in In re Maria T. Garcia and In re Rodolfo AVILA-PEREZ compels the conclusion that a derivative beneficiary of a visa petition which was approved prior to the enactment of CSPA (and prior to May 1, 2001) and who "aged-out" may adjust status under by submitting an I-485 under section 245(i) today. However, as we stated previously, there needs to be a qualifying person who is willing to test this reasoning before the CIS and, if necessary, in Federal Court.

About The Author

Carl Shusterman is a native of Los Angeles and a 1973 graduate of the UCLA School of Law. He served as an attorney for the Los Angeles office of the U.S. Immigration and Naturalization Service (INS) until 1982 when he entered the private practice of law. He is authorized to practice before the Supreme Court of California, the Federal District Court in the Central District of California, the U.S. Court of Appeals, Ninth Circuit and the Supreme Court of the United States. Mr. Shusterman is a former chairman of the American Immigration Lawyers Association (AILA), Southern California Chapter and served as a member of AILA's national Board of Governors (1988-97). He has chaired numerous AILA Committees, spoken at dozens of AILA Conferences and has contributed a number of scholarly articles to AILA's publications. Mr. Shusterman is a Certified Specialist in Immigration and Nationality Law, State Bar of California. He serves as a member of the Immigration and Nationality Law Advisory Commission for the State Bar. He is a member of the Executive Committee of the Immigration Section of the Los Angeles County Bar Association and of the American Bar Association. Mr. Shusterman is a frequent writer and lecturer on immigration law. Mr. Shusterman has testified as an expert witness before the Senate Subcommittee On Immigration in Washington, D.C.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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