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by Blake Miller, Esq.

Many foreign nationals are all too aware of the painfully long wait associated with most family-based green card petitions. The beneficiary of a preference-based petition filed today would have to wait anywhere from two years to two decades before obtaining their green card (depending on their nationality and relation to the U.S. citizen petitioner). By way of example, if my U.S. citizen mother wanted to file a fourth-preference petition for her Kiwi sister as the sibling of a U.S. citizen, her sister will need to wait about eleven years before she could obtain a green card based on immigrant visa number availability and oversubscription . Even if my mother's sister can stand the wait, what about her presently minor daughter - can she immigrate with her mother to the U.S.? Sure, but only if the daughter is still considered a "child" under the age of 21 - which may not be likely after an eleven-year wait for an immigrant visa number.

On August 6, 2002, Congress sought to ameliorate the harsh affects of processing times on once minor children who have "aged-out", through the enactment of the Child Status Protection Act (CSPA). The Act provides a formula that adjusts the dependent alien's biological age to account for processing delays. For those aliens who are no longer "children" even after application of the formula, the Act provides for automatic conversion of preference categories and priority date retention for newly immigrated parents who file relative petitions for their adult sons and daughters. However, federal courts have issued conflicting opinions as to whether the latter benefits are provided to derivate aged-out children of fourth-preference petitions (my Kiwi cousin).

Recent Second and Ninth Circuit decisions both held that an aged-out fourth-preference derivative child could not retain the priority date of the initially filed petition (Li v. Renaud and De Osorio v. Mayorkas respectively). This places countless fourth-preference derivatives back at "square-one", or more appropriately, another decade of waiting (or two decades for Mexican nationals).

September 8, 2011 was a win for immigrating families when, in Khalid v. Holder, the U.S. Court of Appeals for the Fifth Circuit held "that the 'automatic conversion' and 'priority date retention' benefits in (h)(3) unambiguously apply to the entire universe of petitions described in (h)(2)". The Court's unequivocal holding declares that dependents of beneficiaries with fourth-preference petitions receive automatic conversion and, more importantly, retain the priority date of the initial filing. Thus, aged-out children can utilize the priority date of the initial green card petition, under which they were a derivative, to their benefit. Once the fourth-preference primary beneficiary obtains her green card, she can file a second-preference petition for her aged-out derivative child as the son or daughter of a Legal Permanent Resident. The child can now use the original fourth-preference priority date to save years of processing time and separation from loved ones.

The split in federal appellate courts is based on their deference (9th Circuit), rejection (5th Circuit), or impartiality (2nd Circuit) towards the Board of Immigration Appeals case, Matter of Wang. Matter of Wang found the relevant sections of the CSPA ambiguous (§ 1152(h)(3)) and held that fourth-preference derivative beneficiaries were not entitled to the benefits of automatic conversion or priority date retention. The Fifth Circuit handily rejects Matter of Wang and the Second Circuit position, finding no ambiguity in the CSPA and expressing: "the better view is the simpler one - the one that adds no unwritten requirements to the text".

Unfortunately, contrasting federal court decisions leaves uncertainty in the adjudication process. Families in the Ninth and Second Circuits will continue to be separated, while families in the Fifth Circuit will benefit from Khalid v. Holder and reunite. Fourth-preference derivatives living in the U.S. may even relocate to file their adjustment of status application under the Fifth Circuit jurisdiction to save years in processing times. Beneficiaries who are consular processing abroad may not be so lucky, as the Department of State's National Visa Center will take its own position on the matter.

With this split amongst the circuit courts of appeal, sadly, many families will be split-up. A fundamental principal of the Immigration and Nationality Act has been family reunification. With split courts and split families, we can only hope the Supreme Court takes up this critical issue to unite children with their parents.

About The Author

Blake Miller is an Associate at Wolfsdorf Immigration Law Group’s Santa Monica office where he prepares and assists with employment, entertainment, and family based immigrant and non-immigrant visas. He is especially versed in O-1 non-immigrant and Extraordinary Ability immigrant visa petitions. Mr. Miller formerly practiced at a respected business and entertainment immigration practice in the Los Angeles area, assisting individual and corporate clients in a multitude of immigration matters. He has focused his career on immigration law since law school, where he assisted indigent foreign nationals in the San Diego area as a Legal Intern at the USD Legal Immigration Clinic. As the Vice-Chair of the Beverly Hills Bar Association Immigration Law Committee, Mr. Miller moderates, oversees, and directs immigration programs. His other active memberships include the American Immigration Lawyers Association and Los Angeles County Bar Association. Mr. Miller received his J.D. from the University of San Diego School of Law in 2009, and his B.A. from the University of California Santa Barbara in 2006. He is admitted to practice law in California.

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