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Priority In Immigrant Visa For "Aging Out" Children

by Syed H. Imam, Esq.

On July 16 a federal judge in a case requesting for certification of a nationwide class action suit challenging the government's restrictive interpretation of section 3 of Child Status Protection Act, 2002 (CSPA), which had amended Section 203(h)(3) of the Immigration and Nationality Act (INA), ruled that he is willing to consider this long standing issue. The contentious provision relates to 'aging out' of children who were of age 21 or below but due to delay in processing for permanent residence became over age and, as a consequence of re-petition, loose their priority for the nonimmigrant visa. For example, if a family sponsored petition for a brother by a US national also includes brother's 9-year-old son but due to processing delay he ages to over 21 years, he will be moved to category 2B from 2A. He will thus have to be sponsored all over again and the wait period will increase, in this case, 12+8=20 years, i.e., 12 years that the boy waited for his father's petition and 8 years for which he will have to wait for his category 2B turn.

The issues before the Court was whether the government could ignore the requirements of section 203(h)(3) and refuse to adjudicate applications for lawful permanent residence under the correct (original) priority date. More precisely the issue was whether the automatic conversion and date retention provisions of 203(h)(3) apply to aliens who age out of eligibility for an immigrant visa as the derivative beneficiary of a third- or fourth-preference visa petition, and on whose behalf a second-preference petition is later filed by a different petitioner.

In the Costelo class action lawsuit, the petitioners intend to file a motion for summary judgment. They will also request a preliminary injunction prohibiting the government from deporting persons who qualify for benefits under the automatic conversion clause. The implication of a move for summary judgment is that it will eliminate lengthy litigation and the matter would be decided expeditiously without a protracted trial. So the move is important.

Automatic conversion and date retention clause is provided in Child Status "Protection Act (CSPA) 2002 and is reproduced below:

RETENTION OF PRIORITY DATE- If the age of an alien is 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."

Among other things, the CSPA amended 203 of the INA by adding what is now above-mentioned subsection (h). This provision allows certain aliens to maintain the status of a child of a lawful resident alien for purposes of the 2A preference category even after turning twenty-one. Specifically, 203(h) provides that an alien's age for purposes of the 2A category is to be determined by subtracting the time that the petition for classification was pending from the alien's age at the time that a visa number becomes available.

Over time, an enormous backlog of adjustment of status (to permanent residence) applications . . . developed at the INS. As a result, child beneficiaries of visa applications often would "age-out," or turn twenty-one, before the application was processed, thereby requiring the applicant to shift into a lower preference category and be placed "at the end of a long waiting list for a visa. The CSPA was enacted on August 6, 2002 essentially . . . to provide relief to children who might 'age out' of their beneficiary status because of administrative delays in visa processing or adjustment application adjudication.

For over seven years, however, government continued to apply a highly restrictive interpretation to this provision. When this issue was agitated in the United States District Court (Central District Court of California) the government resisted on the grounds that the Court "would benefit greatly from any interpretation of 203(h)(3) which the Board of Immigrant Appeals (BIA) might issue" in two similar cases pending before the BIA. As a result, the case was stayed in its entirety for 180 days to afford the BIA an opportunity to issue an interpretation of 203(h)(3) in the first instance. Prior to the June 15, 2009 hearing on this motion, the BIA had issued no such interpretation and the stay had expired. Then, the day after the hearing, the BIA decided Matter of Wang (B.I.A. June 16, 2009) and adopted the government's restrictive interpretation of the automatic conversion clause.

In Costelo v. Chertoff federal Judge James Selna of the Central District Court of California in his decision of July 16 ruled over the government's objection, that the matter had been allowed to hang a fire over too long and the government's limited interpretation of a clear provision 203(h)(3) INA because of BIA's insistence to stick to its restricted interpretation in The Matter of Wang cannot be allowed to continue indefinitely. The Court has accordingly held that it is willing to consider the question whether section 3 of CPSA, 2002 (also read as 203(h)(3) of INA), entitles all aliens who became lawful permanent residents as primary beneficiaries of third- and fourth preference visa petitions listing their children as derivative beneficiaries, and who subsequently filed second-preference petitions on behalf of their aged-out unmarried sons and daughters, for whom USCIS have not granted automatic conversion or the retention of priority date.

About The Author

Syed H. Imam, Esq. is Director of South & Central Asia Democracy Project & Fellow at the Center for the Study of Democracy, School of Policy Studies, by courtesy. Earlier he taught US Constitutional and Private International law in Hamdard School of Law, Karachi. As a member of Hamdard University School of Law team he helped formulate the draft Anti Money Laundering Law in Pakistan. This work constituted a substantial contribution towards the formal draft of the AML as per Pakistan Assessment Mission Report (August 2003) of UN Global Program against Money Laundering. Terrorism and drugs, religion and democracy, public policy and law, particularly in South Asia, are included in his research interest. He holds a Master of Public Administration from John F. Kennedy School of Government, Harvard University and a Master of Laws in International Legal Studies, Law School, New York University. He also attended International Tax Program at Harvard Law School.

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

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