Tag Archive for: CSPA

Cyrus Mehta

EB-3 to EB-2 BOOST MAY NOT PROTECT YOUR CHILD UNDER THE CHILD STATUS PROTECTION ACT

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By Cyrus D. Mehta

If you were born in India and are being sponsored for a green card through your employer under the employment-based third preference (EB-3), the wait is likely to be 70 years. If your employer filed the first step towards the green card, the labor certification, sometime in 2006, and you managed to file an adjustment of status application (Form I-485) when the EB-3 miraculously opened up for one month under the July 2007 Visa Bulletin and closed after that, the wait may be shaved off by a few decades, but it will still be very long. The only saving grace, besides being able to derive the benefits as a pending adjustment applicant, is that the filing of the I-485 application in July 2007 may have frozen the age of your child under the Child Status Protection Act (CSPA) even if your child is substantially over 21 today. If the green card comes through for you finally after 40 years, your child will still be protected under the CSPA, even if he or she is middle aged by then, and be able to derivatively obtain the green card with you as a child.

Many who are in the never ending pipeline for the green card under the EB-3, especially those born in India, may have upgraded their qualifications and obtained an advanced degree, or if they already possess an advanced degree or the equivalent, they may today qualify for a position that requires an advanced degree. Their employers could file new labor certifications with a view to obtaining classification under the employment-based second preference (EB-2), which applies to job positions requiring advanced degrees or their equivalent while the EB-3 is applicable to positions requiring bachelor’s degrees or 2 or more years of training or experience. The EB-2, while still backlogged for India, is moving substantially faster than the EB-3.

Take the example of a foreign national born in India whose employer originally filed a labor certification on November 1, 2006 for a position requiring only a bachelor’s degree and some experience. The next step in the process upon the approval of the labor certification, the I-140 immigrant visa petition, was filed on March 1, 2007 under the EB-3 and was subsequently approved. At the time of filing the I-140 petition, his daughter, who was born on March 1, 1988, had just turned 19. When the State Department opened up the EB-3 during July 2007, our foreign national from India rushed to file the I-485 applications for himself, his spouse and his daughter who was still 19. The filing of the I-485 application for his daughter, on say July 15, 2007, permanently froze her age under INA section 203(h)(1). Under Section 3 of the CSPA, which has been codified in INA section 203(h)(3), if the child’s age is below 21 when the visa petition is approved and the priority date becomes current, whichever happens later, the child’s age remains permanently frozen under 21 provided she also sought to apply for permanent residence within one year of visa availability. In our example, the daughter’s priority date became current on July 1, 2007, when the State Department announced that the EB-3 was current. Eligible people could file adjustment applications until August 17, 2007 as a result of a threatened law suit, which compelled the State Department to extend the filing period beyond July 30, 2007. After the July 2007 Visa Bulletin, the EB-3 severely retrogressed several years and has moved forward again at a snail’s pace, especially for India, since then. As of the time of writing, the cut-off date for India under the EB-3 is July 22, 2002. However, since the daughter filed her I-485 when the EB-3 date became current in July 2007, her age at that time, which was 19, permanently froze under the CSPA.

Today in 2011, even though the daughter is over 23, her CSPA age is technically still 19 and she can some day in the distant future, when the priority date of November 1, 2006 becomes current under the India EB-3, adjust with her father as a derivative (as if she’s still under 21) however old she may be.

While our Indian foreign national, his wife and his daughter can remain legally in the US as pending adjustment of status applicants, this is not of much solace for her father who is yearning to break free with a green card. He has been stuck with his job for many years, and even if he is provided some job mobility under INA section 204(j), he must work in a similar occupation under which he was sponsored through the labor certification. Thus, if he was sponsored as a Computer Programmer, and can now qualify for a position as a Controller of his new IT company after obtaining an MBA in Finance through an evening executive MBA program at an Ivy League business school, his adjustment application will get denied when ultimately adjudicated if he is unable to show that he has “ported” to a same or similar occupation. One way to resolve this is if his present employer can file a new labor certification presently under the EB-2 as a Controller requiring an MBA and experience in the peculiar financial aspects of an IT company. Once the labor certification is approved, the employer files a new I-140 petition but can magically capture the priority date of the old I-140 under EB-3, which is November 1, 2006. A USCIS rule, 8 CFR 204.5(e), allows you to do this provided that petition is not subsequently denied or revoked. Once the I-140 petition under the EB-2 is approved, it can be inter-filed with the pending I-485 application that was initially filed with the original I-140, and since the EB-2 cut-off date is well beyond November 1, 2006, he will suddenly get the green card.

While this may be manna from heaven for him and his spouse, the filing of the new I-140 will most likely not be able to protect the daughter under the CSPA at this point as it was filed much after her 21st birthday, even though the new I-140 petition will recapture the priority date of the old I-140 petition filed under EB-3. While this can be open to interpretation, the CSPA applies to the “applicable” petition only, and it will be difficult to bootstrap the new I-140 onto the “applicable” EB-3 I-140 petition, which is no longer being utilized but was filed before her 21st birthday. While there may be some room to interpret the term “applicable” petition to include the new I-140 petition under EB-2, especially since the new I-140 petition recaptured the priority date of the prior I-140 petition especially if it was filed by the same petitioning employer (See Li v. Renaud), it will be extremely risky to go ahead with this knowing that there is an aged out child who is otherwise protected under the CSPA. Thus, while dad and mom get the green card, their daughter may get left behind. Parents who thus wish to upgrade from EB-3 to EB-2 should beware about doing so if they have a child who is over 21 but who has been protected under the CSPA through the filing of an adjustment application under a prior I-140 petition.

We have already written extensively about the Fifth Circuit’s recent decision in Khalid v. Holder, which correctly interpreted INA section 203(h)(3) providing for the automatic conversion of the priority date of the earlier petition to the appropriate category. If the daughter is unable to seek the protection of the CSPA, after her parents got their LPR status under EB-2, she can use the November 1, 2006 priority date, if she resides in a jurisdiction where Khalid v. Holder is binding, to a family-based second preference petition for an adult child (F2B) that her father can potentially file on her behalf as a green card holder. But even Khalid v. Holder may not throw her an immediate life line since the current cut-off date under the F2B is much earlier than November 1, 2006 at this time.

The CSPA is an extremely complex statute subject to varying interpretations, which even Circuit courts cannot agree upon, and the thin protective cover that it provides can quickly unravel based upon even an inadvertent misstep. Of course, this blog assumes that the child of an EB-3 beneficiary has already been covered under the CSPA through an earlier adjustment application. If the EB-3 for India is truly expected to take 70 years before a green card materializes, a foreign national being sponsored today with a 1 year old child will have absolutely no hope of protecting the age of this child under the CSPA!


David Isaacson

LEAVING TOO MUCH FOR ANOTHER DAY: WHAT THE SECOND CIRCUIT’S RECENT CSPA DECISION MISSED IN AGREEING WITH THE RESULT OF MATTER OF WANG

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By David A. Isaacson

In its recent decision in Li v. Renaud, the U.S. Court of Appeals for the Second Circuit found that a derivative beneficiary of a family-based petition, whose adjusted age even under the Child Status Protection Act (“CSPA”) is above 21, cannot use section 203(h)(3) of the Immigration and Nationality Act (“INA”) to retain the priority date originally given to the principal beneficiary with respect to a petition in the 2B preference category by that principal beneficiary. That is, if your grandfather filed a petition for your father when you were 14 years old, and the petition took one year to process, but a visa number was not available for another 10 years, you cannot retain the family’s place in the priority-date waiting line now that you count as over 21 after subtracting the year that the petition was pending; instead, you will have to go to the back of the years-long waiting line for an immigrant visa number.

In so holding, the Second Circuit essentially approved the result reached by the Board of Immigration Appeals (“BIA”) in its Matter of Wang decision in 2009, although for somewhat different reasons. In the process, however, the Second Circuit appears to have overlooked the significance of its reasoning as applied to employment-based petitions, a subject which was deliberately left for another day but which I would argue sheds substantial light on why the Second Circuit’s decision in Li was incorrect.Additional background regarding the CSPA in general and Matter of Wang in particular can be found in an earlier article written by this author for our firm’s website. The section construed by Matter of Wang and Li v. Renaud, INA § 203(h), reads as follows:

(h) RULES FOR DETERMINING WHETHER CERTAIN ALIENS ARE CHILDREN-

(1) IN GENERAL.– For purposes of subsections (a)(2)(A) and (d), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using–

(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d), the date on which an immigrant visa number became available for the alien’s parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability; reduced by

(B) the number of days in the period during which the applicable petition described in paragraph (2) was pending.

(2) PETITIONS DESCRIBED- The petition described in this paragraph is—

(A) with respect to a relationship described in subsection (a)(2)(A), a petition filed under section 204 for classification of an alien child under subsection (a)(2)(A); or

(B) with respect to an alien child who is a derivative beneficiary under subsection (d), a petition filed under section 204 for classification of the alien’s parent under subsection (a), (b), or (c).

(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.

(4) APPLICATION TO SELF-PETITIONS- Paragraphs (1) through (3) shall apply to self-petitioners and derivatives of self-petitioners.

Enacted into the U.S. Code at 8 U.S.C. § 1153(h)(3), this section can be found online within 8 U.S.C. § 1153 .

In Matter of Wang, the BIA had overturned a previous unpublished decision called Matter of Maria T. Garcia, which did allow the aged-out child of a family preference petition beneficiary to retain the priority date that she previously had shared with her parent. The BIA found that the language of § 203(h)(3) was ambiguous, but that legislative intent showed § 203(h)(3) to codify an existing regulatory practice in which priority dates could be retained when the same petitioner filed a second petition for the same beneficiary. As the BIA explained, this practice was “limited to a lawful permanent resident’s son or daughter who was previously eligible as a derivative beneficiary under a second-preference spousal petition filed by that same lawful permanent resident.” Outside that context, the BIA found § 203(h)(3) inapplicable to derivative beneficiaries.
The Second Circuit in Li went a step further, holding that the statutory language was not even ambiguous, and that one need not resort to legislative intent to find that a priority date could not be retained “to use for a different family petition filed by a different petitioner.” Under circumstances such as the grandfather/child/grandchild fact pattern noted earlier (modeled on the facts of Li), the Second Circuit said, there is no “appropriate category” to convert to, because there is, for example, “no family preference category for grandchildren of LPRs”.
In footnote 1 of the Li opinion, at the urging of amicus curiae Mohammed Golam Azam, the Second Circuit made clear that they were leaving the issue of employment-based petitions for another day, and not determining how § 203(h)(3) applies to such petitions. The problem with this well-intentioned effort not to decide an issue unnecessarily is that it allowed the court to avert its eyes from the implications of the Liholding in the employment-based context, implications which I would argue suggest a problem with the entire holding.

As the reader will note from the quoted text of INA § 203(h) above, § 203(h)(2) specifically applies § 203(h) to derivative beneficiaries under § 203(d) not just of family-based petitions covered by § 203(a), but also of petitions in employment-based cases covered by § 203(b) and in diversity cases covered by § 203(c). Moreover, § 203(h)(3) specifically mentions subsection (d), pertaining to derivative beneficiaries, so we know that § 203(h)(2) doesn’t just apply to principal beneficiaries under § 203(a)(2)(A), children of Lawful Permanent Residents (“LPRs”) petitioned-for under the “2A” preference, who age out and must use the 2B preference for adult sons and daughters. Rather, the structure of § 203(h) read as a whole clearly indicates that the CSPA mechanisms apply to employment-based cases just as well as to family-based cases, and that priority-date retention applies to derivative beneficiaries just as much as to principal beneficiaries.

In the employment-based context, however, the reasoning of Li, if taken to its logical conclusion, suggests that § 203(h)(3) has no role to play at all. Being the child of the beneficiary of an employment-based petition will never qualify as a preference category in its own right, any more than being the grandson of a family petitioner is its own category does, and the derivative beneficiary will never (or almost never) be the direct beneficiary of a second petition by the same employer. Perhaps the Second Circuit in a later case will choose to shy away from this implication and prevent its precedent from going further down the wrong path, but that does appear to be the direction in which Li points it.
On the other hand, § 203(h)(3) does have work to do in the context of § 203(b) petitions if we adopt the interpretation that Li and Matter of Wang rejected, the one previously offered by the BIA in Matter of Maria T. Garcia: that the appropriate category for an aged-out derivative under § 203(d) is the 2B category, under INA § 203(a)(2)(B), with respect to the original beneficiary. This interpretation allows the derivative beneficiary to continue in essentially the same relation to the principal beneficiary that has existed all along, modified for the aging-out. It should not come as a surprise that the process allowed by this interpretation requires awaiting the LPR status of the principal beneficiary, because the defining characteristic of derivative beneficiaries under § 203(d) is always their entitlement to “the same order of consideration . . . if accompanying or following to join[] the spouse or parent”—to quote directly from the text of § 203(d) as enacted at 8 U.S.C. § 1153. By definition, one cannot accompany or follow to join a parent who has not yet become an LPR, whether or not the CSPA is involved.
The irrelevance of § 203(h)(3) with regard to § 203(b) derivatives caused by the interpretation in Li is a contextual clue in the statute that this interpretation is incorrect. Interpretations which render part of a statute superfluous are, and should be, disfavored. According to the logic of Li, it appears that even though § 203(h)(2)(B) mentions family-based petitions under § 203(a) and employment-based petitions under § 203(b) in precise parallel as contexts in which the entirety of § 203(h) should apply to derivative beneficiaries under § 203(d), and even though § 203(d) is specifically cited in § 203(h)(3) as a context in which that particular subsection applies, § 203(h)(3) may not apply at all to § 203(d) derivative beneficiaries of § 203(b) employment-based petitions. Whether or not one agrees with the BIA’s policy decision in Matter of Wang (which this author finds overly harsh) as applied to a statute thought by the BIA to be ambiguous, it certainly seems excessive given this clue to read the statute as unambiguously mandating such a result. And yet that is what the Second Circuit did in Li.
There is a famous saying, often attributed to Thomas Jefferson, that you should never put off until tomorrow what you can do today. Courts are often properly reluctant to follow this maxim, because it is a principal of judicial decision-making in our system of law that a court should not reach out to decide questions unnecessarily. But when a court too cavalierly puts off until tomorrow a question which is actually important to the resolution of the issue it is deciding, it may come to an incorrect result. It appears that this may be what occurred in Li.