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.