On June 19, Attorney Nancy Miller and I argued in favor of the rights of a class of immigrant families before an 11-judge panel of the U.S. Court of Appeals for the 9th Circuit. The Court’s decision is a few weeks or months away.
Many immigrant families are asking what this lawsuit means to them. Let me explain.
The plaintiffs are persons who immigrated to the U.S. through either their brothers or sisters (family-based 4th preference category) or one of their parents (family-based 3rd preference category). The issue is whether their sons and daughters will be able to immigrate together with their parents.
Traditionally, when a child turned 21 years of age, he no longer was eligible to immigrate to the U.S. together with his parents. The parents, once they become permanent residents, have the option of sponsoring their aged-out unmarried sons and daughters under the family-based 2B preference category. However, this entailed years, or even decades, of separation. Congress passed the Child Status Protection Act (CSPA) in 2002, in part, to solve this problem and to prevent the separate of parents from their sons and daughters.
CSPA provides that the length of time that the visa petition was pending is subtracted from the child’s age on the date that the priority date becomes current. If the resulting age is under 21, the son or daughter can immigrate together with his parents. CSPA further provides that if the child’s CSPA age is 21 or over, he “retains” the “priority date of the original petition” which “automatically converts” to the “appropriate category”.
The meaning of the above words and phrases is very clear. The priority date of the original petition is the date that the 3rd or 4th preference visa petition was submitted. The appropriate category is the family-based 2B category since the child is now the unmarried adult son or daughter of a permanent resident. This enables any period of family separation to be either shortened or eliminated.
The government disputes this by relying on the clearly erroneous decision of the Board of Immigration Appeals in Matter of Wang which held, in a two-sentence “analysis” of CSPA, that the language of CSPA is ambiguous, and that “retention” and “automatic conversion” are terms of art which are to be construed in such a restrictive fashion that no additional families would be united by this subsection of the law. Wouldn’t this render the clause be completely meaningless? No, says the government. The benefit would be that some immigrant families would no longer have to submit an additional petition for their child. Quite a “meager benefit” concluded the U.S. Court of Appeals for the 5th Circuit in Khalid v. Holder. We agree. If the 9th Circuit concurs, the automatic conversion clause will lead to the reunification of families who immigrate in any of the family and employment-based categories, as well as those who immigrate through the diversity visa lottery.
Here are two examples of how the automatic conversion clause would work:
1. Mr. and Mrs. Santos, both citizens of the Philippines, were sponsored by Mrs. Santos sister, a U.S. citizen, on January 27, 1989. Their priority date became current on July 1, 2012. They have 3 children, born in 1988, 1992 and 1996. The sister’s visa petition was approved in one month. Therefore, their children the oldest of whom was 1 year old, and other two, not even born when the petition was submitted, are now aged 24, 20 and 16. The younger two children can immigrate together with their parents. The oldest child, who is still unmarried, would benefit by the automatic conversion clause. She would be given credit for the 23 years that she stood in line together with her parents waiting for her green card. As soon as her parents become lawful permanent residents, her category would automatically convert to the family-based 2B category, and she would be permitted to immigrate to the U.S. and rejoin her family.
Under the government’s interpretation of the law, she would lose her priority date, and her parents would have to sponsor her in the 2B category, and she would have to wait, unmarried, for 32 years in order to get her green card and rejoin her family. The situation would be even worse for children born in Mexico, where the real wait for a person in the 2B category exceeds 115 years!
2. Mr. and Mrs. Patel, both citizens of India, have lived in the U.S. for 9 years, and have two children, a son of 18 who was born in India and a daughter of 6 who was born in the U.S. Mr. Patel who graduated from a university in the U.S. in computer science changed his immigration status from F-1 student to H-1B professional. His employer sponsored him for a green card in 2008 under the employment-based 3rd preference category. The PERM application has been approved and the USCIS approved the I-140 petition in 6 months. Since the EB-3 category for Indians has been stuck in 2002 for some time now, it is very possible, indeed probable, that their son will age-out before his priority date becomes current. However, as long as the Court interprets the automatic conversion clause as a benefit to prevent the prolonged separation of families, their son will be able to retain his 2008 priority date and will automatically convert to the 2B category when his parents become permanent residents. He may be able to adjust his status soon after his parents do so as long as he remains unmarried.
Should the government prevail in this lawsuit, he will be forced to go to the back of the line, and wait, unmarried, for over 10 years in order to become a permanent resident.
<strong>A note of caution:</strong> No matter how the judges of the 9th Circuit Court of Appeals rule on this matter, the losing side may ask the Supreme Court of the United States to review this decision. Should this occur, the proper interpretation of this provision of CSPA will not be decided until 2013 and no families would benefit in the meantime.
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.