BIA GRANTS GREEN CARD TO 32 YEAR OLD "CHILD" UNDER CSPA
by Michael J. Gurfinkel, Esq.

In a recent unpublished decision, the Board of Immigration Appeals (BIA) ruled that a 32-year-old single alien was eligible for a green card (and adjustment of status) under the Child Status Protection Act (CSPA) by using the old 1983 priority date from an F-4 petition filed by her aunt for her mother (sister to sister).   At the time the aunt's petition was originally filed, the alien was only nine years old.   However, she was 22 years old when the priority date on the aunt's petition was finally "current" in 1996, and therefore she was no longer a "derivative" beneficiary (because she turned 21).   At the time of the BIA decision, she was 32 years old , seeking benefits under CSPA.  

Although "unpublished" decisions are not "binding authority" on the USCIS, I would argue that these decisions demonstrate the way in which the BIA is interpreting the law, and how it would decide similar cases if USCIS denied those cases and the cases were appealed.   This decision could benefit other aliens, because it effectively would allow certain children who aged out, while waiting for the priority date, to use the old priority date on their parents ' petition (i.e. a petition filed by a grandparent, uncle or aunt many years ago.)   This case indicates that the "child" can use the parents' old priority date.

By way of background, CSPA contains a complex mathematical formula for children of non-citizens for purposes of calculating their cage.   Under the formula, the child's age is calculated by taking into account the length of time it took Immigration to approve the underlying petition, from the date of filing to the date of eventual approval.   That length of time is then deducted from the child's age when the priority date eventually becomes current.   For example, if it took three months for Immigration to approve a petition, then the child can subtract three months from his or her age when the priority date becomes current. If it took Immigration three years to approve the petition, then the child would be able to subtract three years from his or her age.   Thus, the longer it took Immigration to approve a petition, the more time a child could subtract from his or her age.

CSPA also contains another provision that if the age of the child is determined, under this mathematical formula, to be 21 years of age or older, " 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 . "   It was that particular provision of CSPA that was the subject of this BIA decision.

In that case, a 32-year-old single woman claimed that she was eligible to adjust her status (be interviewed for a green card in the US) based on an old 1983 petition filed by the alien's aunt for the alien's mother when the alien was only nine years old.   Because it took so many years for the priority date on that petition to become current, the alien was already 22 years old when the priority date became current and thus she "aged out."   The alien contended that since, under the CSPA, her category was "automatically... converted" to the F-2B category (single adult child of immigrant parent), then she should be able to retain her mother's original 1983 priority date (on the aunt's petition) for purposes of adjustment of status in the F-2B preference category.   Since the F-2B priority date was long beyond 1983, she was eligible to adjust status.  

The BIA held, "We agree with the respondent that where an alien was classified as a derivative beneficiary of the original petition, the 'appropriate category' for purposes of section 203(h)(3) is that which applies to the 'aged out' derivative vis-à-vis the principal beneficiary of the original petition." In this case, the BIA ruled that the "appropriate category" to which the alien's petition was converted is the second- preference category of the family based immigrants, i.e. the unmarried sons and daughters of lawful permanent residence.   "Furthermore, the respondent is entitled to retain the... 1983 priority date that applied to the original fourth-preference petition, and therefore a visa number under the second-preference category is immediately available to the respondent."   In other words, the alien's F-4 derivative status automatically converted to F-2B, and using the F-4 priority date, she was immediately eligible to adjust status.

I know that there have been many situations where a parent was petitioned by a mother or father, or brother or sister, when their children were small.   But after so many years, those children turned 21 before the priority date on the parent's petition became current, and the child aged out and was left behind.   This new BIA case would seem to bring the parent's old petitions "back to life" by allowing the derivative child to have the petition possibly "convert" to F-2B, and apply the parent's priority date from the original petition filed on behalf of the parent.

Again, I emphasize that it is an unpublished decision, but at least it interprets CSPA in a way that is extremely beneficial to aliens.   In addition, there are other issues in determining whether CSPA applies, such as whether the alien " applied" for a visa within one year of visa "availability ," and whether there had been a " final determination " on the case. That is why it is important to seek the advice of an attorney, because if this does apply, the child you left behind could be "legal" sooner than you expected.   If your family is in this situation, I would strongly recommend that you seek the advice of a reputable attorney, who can evaluate your situation, and see if it is similar to this BIA case.  

Back to Main