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Bloggings on Immigration Update

by Carl Shusterman

The Child Status Prevention Act?

On June 19, the United States Court of Appeals for the 9th Circuit en banc (11 Judges) will hear oral arguments in a case which challenges the BIA’s interpretation of the “automatic conversion” clause of the Child Status Protection Act (CSPA) in Matter of Wang.

We have discussed the legal arguments in this matter on numerous occasions.  However, from the standpoint of policy, the question remains how long a person would have to wait to immigrate to the U.S. if the courts were to defer to Matter of Wang.

On May 11, three amicus (friend of the court) briefs were filed in support of our position.  Attorney Charles Wheeler who co-authored one of the amicus briefs is the author of the definitive book regarding the Child Status Protection Act.  Much to his credit, Charles took the time to look behind the dates in the Visa Bulletin, and to analyze the actual numbers behind the bulletin.  His conclusions are startling. 

Before revealing Charles’ conclusions, let’s set the stage by providing the following hypothetical:  Juan was born in Mexico on January 1, 1990.  Exactly, two years later, on Juan’s 2nd birthday, his grandfather, a citizen of the United States submitted a visa petition on behalf of Juan’s mother and her family.  The INS approved the petition after one month, but because of huge backlogs in the family-based 3rd category (married sons and daughters of U.S. citizens) for persons born in Mexico, the family was forced wait over 20 years, until March 1, 2012, for their priority date to be current. 

Juan’s age when the priority date became current was 22 years and 2 months.  Applying the mathematical formula in CSPA, the length of time that the visa petition was pending  (1 month) can be subtracted from his age.   And under section 424 of the Patriot Act, another 45 days may be subtracted from Juan’s age.  However, even after these calculations, Juan’s age is still over 21.

Can Juan, after waiting in line for 20 years, immigrate to the U.S. together with his parents?

CSPA (8 U.S.C. 1153(h)(3)) provides as follows:

“(3) 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.”

We believe that this section of law clearly states that Juan, as a derivative beneficiary of his U.S. citizen grandfather’s visa petition. is entitled to retain his January 1, 1992 priority date and immigrate to the U.S. under the family-based 2B category as the unmarried son of a permanent resident mother.  The government disagrees. They argue that Matter of Wang correctly held that the only derivative beneficiaries who Congress intended this section to benefit are those who fall under the family-based 2A category (children under the age of 21) who “age-out” into the 2B category.  As stated in Matter of Wang, they argue that if all derivative beneficiaries could convert to 2B status, they would be “jumping the line”.

However, let’s step back from the legal arguments for a moment, and consider the practical effect of deferring to Wang.  If Juan’s mother submits a visa petition for Juan in the 2B category, how long is she going to have to wait until Juan is legally able to join her in the U.S.?

Charles correctly states that the number of persons who may immigrate to the U.S. under the family-based 2B category is limited to 26,266 annually.  There is a per-country limit of 7%, or 1,841 per year.  How many people born in Mexico are waiting currently in line for permanent residence in this category?  Here, Charles cites the the Department of State’s Annual Immigrant Visa Waiting List Report which provides the following number: 212,621.  Dividing this number by Mexico’s annual quota in the 2B category, the result is 115.5.  This is the number of years that it will take Juan to immigrate to the U.S. if the government is able to persuade the court that this is what Congress intended when they passed CSPA.

It is safe to assume that neither Juan nor his parents will be alive 115 years from now.  Therefore, the practical effect of deferring to Matter of Wang would be to prevent Juan, or anyone similarly situated, from ever being able to reunite with his family in the U.S.

If this indeed was Congress’ desire, one has to wonder why the law they passed in 2002 was called the Child Status Protection Act rather than the Child Status Prevention Act.

About The Author

Carl Shusterman is a certified Specialist in Immigration Law, State Bar of California. He was a former U.S. Immigration & Naturalization Service Attorney and worked for the Board of Governors, and the American Immigration Lawyers Association.

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