Wealth of Advice

By Michael J. Gurfinkel, Esq.

In 2006, the Board of Immigration Appeals (BIA) issued an unpublished decision, Matter of Garcia, in which the BIA stated that if a child aged out (turned 21) while waiting for the priority date on his parent’s petition to become current, then, in certain circumstances, the parent’s petition would automatically convert to the appropriate category, and the child would be able to retain his or her parent’s original priority date.

In the Garcia case, the child was a derivative beneficiary of her parent’s F-4 petition (sister/brother). Because it took so many years for that F-4 petition to become current, the child eventually aged out, and was no longer included under the parent’s petition. However, the Child Status Protection Act (CSPA), enacted in 2002, contained a provision that if the age of a child is calculated to be over 21 years of age, “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.” In other words, the F-4 petition would automatically convert into an F-2B petition (single adult child of immigrant parent), and the child would be able to retain their parent’s original F-4 priority date. Thus, in the Garcia case, a “32-year old child” was able to obtain a green card, without having to wait several additional years for the priority date in the F-2B category to become current, because she used her parent’s old F-4 priority date.

However, the Garcia case was an unpublished decision. But still, the decision was encouraging, because the BIA at least had provided some interpretation or guidance with respect to the “retention of priority date” provision of the CSPA.

As time went by, more cases with similar “retention of priority date” issues arose, and the Department of Homeland Security (DHS) certified one of those decisions to the BIA for review, in order to get a published decision.

On June 16, 2009, the BIA issued a published decision, Matter of Wang, regarding the “retention of priority date,” and effectively overruled itself, stating that it would “decline to adopt the reasoning in Garcia.” Instead, the BIA ruled that the only children who could benefit from the retention of priority date are those who were derivatives of a parent’s F-2A petition (spouse or minor child of lawful permanent resident), who aged out. Only these children could retain that F-2A priority date on a new F-2B petition filed for them. However, derivative children in other visa categories, such as F-1 (single adult child of U.S. citizen), F-3 (married child of U.S citizen), F-4 (brothers and sisters of U.S. citizens), or employment based categories (through labor certification), would not be allowed to retain their parent’s original priority date upon aging out.

It is truly disappointing that the BIA would come out with a decision (Garcia), allowing the retention of priority dates in all of the family and employment based categories, and then effectively reverse itself, and refuse to follow its previous reasoning, and instead give a very narrow and limiting application of the CSPA.

However, there are similar cases now pending in the federal courts. Let’s hope the courts will come to the rescue. There have been many situations where the BIA has interpreted laws or regulations in a restrictive fashion, but federal courts have later ruled that the BIA’s interpretations were unreasonable. I think the language of the statute was properly interpreted in the Garcia case, and let’s hope the federal courts agree.

 

Related posts:

1. CSPA and Naturalization
2. Did you Invite the NVC to your Child’s Wedding?
3. The Difference Between Processing Times and Priority Dates
4. Illegitimate Child Included, but not Fiancee

 

 

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