New York Lawyer's Legal Updates

Child Protection Status Act and Priority Date

Author: US green card lawyer Alena Shautsova

Child Protection Status Act and Priority Date: 9th Circuit Rejects BIA Decision in Matter of Wang.

For many, obtaining a green card in the US is a happy event, but for many, it means that they will be separated with their children for quite some time.

The following scenario is a common one: a parent obtained green card through marriage, but the marriage takes place after parent’s child’s 18th birthday, and a stepparent cannot petition for the spouse’s child. Then, the non-citizen spouse has to file petition for her/his unmarried child, if the child is still under 21 (F2A), or petition for her/his unmarried son or daughter (F2B). But here is the trick: what if the child in the first case scenario reaches 21 and the petition is still not adjudicated because the visa number is not available? Then, the law says, the child can qualify for protection under the CPSA act, or his petition will automatically be converted to a new appropriate category with the preservation of the original priority date.

But what to do if the sons or daughters of other family sponsored categories have children? What if their child reaches 21 before the underlying petition is adjudicated? Will such derivatives lose their ability to come to the US?

For years, the Immigration practitioners fought the battle to persuade the USCIS and the BIA that such a child should be able to retain the original priority date that was obtained when the first petition was filed for child’s parent.

In the infamous Matter of Wang, 25 I. & N.Dec. 28 (BIA 2009), the BIA denied the notion that the derivatives of the family sponsors petitions may retain the original priority date if they reached 21 years of age when the immigrant visa number became available. On September 26, 2012 the 9th Circuit Court of Appeals reversed the BIA decision:

We conclude that the plain language of the CSPA unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries. The BIA’s interpretation of the statute conflicts with the plain language of the CSPA, and it is not entitled to deference.

You can read the full text of the decision here.

The government is likely to file an appeal in this case. Please note, that the 2nd Circuit Court of Appeals, that covers the State of New York, reached an opposite conclusion as to the interpretation of the Statute in Li v. Renaud, 654 F.3d 376 (2d Cir. 2011).

At the same time, New York Immigration Judge Gabriel Videla, in his decision Matter of Azam ruled that when the adjustment of status is based on employment rather than family petition, the aged out negative consequences will not apply.

If you have immigration concerns, consult a skilled New York immigration lawyer and find out about your options.

28 September 2012
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