Aging out

[GKG]

Hi Munish

So I have posted some information about my daughter's case - same thing - I along with my husband and son got the Green Card and she aged out by 2 months. Then last year I filed the I-130 for her and got a 'Receipt Notice' - still awaiting the Approval Notice.
Do you thing it will be helpful if I write to the California Centre (service center where the application is filed) and ask them to allote the Priority date of the original F4 petition, based on the BIA decisions?
Also can you give me the tel. nos. where you called the USCIS and NVC? Will it help calling them?


Thanks

GKG

[Munish]

Hi GKG,

You can get the numbers going to their respective websites. If you cannot find it let me know and I will post it.

Before anything else, has your daughter aged out because she is 21, in which case you can reduce her age by the number of months it took the INS to approve your petition, and may classify her a child. Please let me know if this calculation has been done, or if you are not sure I'll explain further. If she is a "child" under the CSPA she can file the consulate form (I think DS-230 but I will double check) with the consulate office the processed your immigrant visas if no more than a year has passed.

If your daughter has aged out taking into account the CSPA calculation then so far you've done everything right.

However, do send, by letter, a copy of your original application of which your daughter was a derivative beneficiary as proof of the priority date (PD) and also a letter requesting retention of that date pursuant to the Immigration and Naturalization Act, section 203(h)(3) (or CSPA, section 3).

I would make the letter as simple as possible with the basic points. As far as I know California Service Center have been alloting the earlier priority date where requested, so that is good news.

In terms of calling the numbers, this is a waste of time in my opinion. I have tried it numerously, but tell you ultimately in the most complex of cases to write to the USCIS. They did confirm that people have recaptured earlier PDs but they cannot access officers in the service centers directly regarding your case. The only means of direct communication is letter to the California Service Center.

Let me know if you have more questions. I am eager to hear news from someone that I know actually has reserved the original PD.

Good luck.

Munish

[GKG]

Hi Munish

Thanks for this quick response.

So the calculation was done to reduce the days etc etc. and she still aged out bu about 75 days.

I read with interest what you just wrote:
"However, do send, by letter, a copy of your original application of which your daughter was a derivative beneficiary as proof of the priority date (PD) and also a letter requesting retention of that date pursuant to the Immigration and Naturalization Act, section 203(h)(3) (or CSPA, section 3).

I would make the letter as simple as possible with the basic points. As far as I know California Service Center have been alloting the earlier priority date where requested, so that is good news."

So do you know for sure that the Cal. Service centre is alloting the earlier PD where requested?

That sounds like really good news.
I will write to them - and keep the letter to the point.
Thanks for the help

GKG

[Munish]

GKG,

What I know is hearsay. I have seen lawyers claim they have succssfully obtained earlier PDs for their clients in these circumstances and refer specifically to the California Service Center. A friend of mine is also an immigration lawyer in DC and has told me everytime she has made an application on her clients' behalf, it has been appropriately dealt with, and that mine was the first she heard of being erroneously treated.

I do not know anything for sure I am afraid and I don't want to raise hopes (clearly because of my one experience). However, I would remain hopeful and positive, and by the time it is processed may be a case on the CSPA will be well settled removing any doubts.

The only downside with California is the amount of time it takes to process application. What is the date of the receipt notice and does it give a time frame. If not you can see this on their website.

[GKG]

Hello Munish, Sue

So I discussed with my brother - we felt that there was nothing to loose by writing this letter to ask for a priority date of the earlier application.
However what I see on the Cal. Service Centre website is that still processing I-130 (son/daughter over 21) of date Feb. 7 2005.
Although we have received the 'Receipt Notice' I wounder how long it will take for the 'Approval Notice' ....
Do you think its any use talking to a lawyer right now? with no Approval Notice' in hand?

Thanks for all the help and suggestions

GKG

[Munish]

Definitely write to them. As for seeking a lawyer I would do your research now and have a shortlist ready for when you receive the approval notice.

If the earlier PD is granted, will that is great. If not then you would have to consider legal action in the Federal Courts to try and recpature that date.

What is the date mentioned on your receipt notice? You should be able to estimate the time from that.

[GKG]

Hi Munish

The Receipt notice date is June 12 2006 - and they are processing Feb. 7 2005 as yet

GKG

Originally Posted by Munish

Definitely write to them. As for seeking a lawyer I would do your research now and have a shortlist ready for when you receive the approval notice.

If the earlier PD is granted, will that is great. If not then you would have to consider legal action in the Federal Courts to try and recpature that date.

What is the date mentioned on your receipt notice? You should be able to estimate the time from that.

[Munish]

Oh wow! You should have moved to the North East. The wait at Vermont Service Center is about nine months.

You still have another 16-18 months to go. That is crazy!

[Susie]

Originally Posted by GKG

Hello Munish, Sue

So I discussed with my brother - we felt that there was nothing to loose by writing this letter to ask for a priority date of the earlier application.
However what I see on the Cal. Service Centre website is that still processing I-130 (son/daughter over 21) of date Feb. 7 2005.
Although we have received the 'Receipt Notice' I wounder how long it will take for the 'Approval Notice' ....
Do you think its any use talking to a lawyer right now? with no Approval Notice' in hand?

Thanks for all the help and suggestions

GKG

Hi

On your receipt notice you should have two dates, imho

One will be a receipt date the other priorty date

What are both dates?

[Munish]

Isn't the PD given after processing at the USCIS? I never saw my receip notice or approval notice so I have not idea. I only learned of my PD after the NVC wrote to me informing me the USCIS passed them the application.

[O&A]

Munish:
Shall I send the details of my son for whom I have discussed on Expat forum in the past. That would be a good example to include because he moved to USA from Canada with me at the age of 15 years.
He completed his High School and then under-grad at younge ages, here. He was in the local newspaper twice (more than half page coverage) for completing his under-grad. at 19 years and 8 months.
However, he was gaed-out by 4 months because my labor certification approval took almost 5 years 8 moths. Thanks.

[Munish]

Yes O&A I agree. Do post the details on this thread so other viewers interested in this topic can see it in one place. Rather than rewriting anything you could just copy the link the the other thread so people can click the link to take them to your thread if it is easier.

Munish

[Susie]

Originally Posted by Munish

Isn't the PD given after processing at the USCIS? I never saw my receip notice or approval notice so I have not idea. I only learned of my PD after the NVC wrote to me informing me the USCIS passed them the application.

Hi

One date is the receipt date, eg the date of being received in the service centre

The priorty date is the date at whcih time the USCIS expect to review your case and/or adjudicate file

If it is now 30 days past your priorty date you can call the 1-800 number and insist on a Case status review

They then send e-mail to which office holds the file and they in turn should get back within 30 days of your request for a case status review

[JakeCastle]

I am calling out to ALL FILIPINOs concerned to join a core group to discuss and band our resources. Please add me as a frined at YAhoo MEssenger my Yahoo ID is Jake_of_90210 please add me as a friend and form a peer group. I know that in terms of sheer number the Philippines is most affected.

Again to all Pinoys! please add me as a friend my Yahoo ID is Jake_of_90210 my email add is naturally the same.

Again thanks to Sussie and Mun79 for keeping this thread alive.... I am still here trapped in Manila alone waiting for the chance to be reunited with my family.... keep up the good work guys.

[JakeCastle]

Originally Posted by forbor4c1980

Sorry am I missing something here? In the April visa bulletin, the 1st preference category is processing dates in Feb 22, 1992. The 2FB is October 1, 1996. Also, when you talk about the "family reunion act" are you referring to the LIFE act? I know for sure that I'm not eligble for that.

I totally AGREE with forbor4c1980 I'd say we have a similar case email/YM tapos ayun tignan natin kung pano diskaste natin. translated: (then lests see what we can do together.)

[JakeCastle]

Hi guys am posting a letter which i inted to send via registered mail. I was hoping that you folks especially the barristers would send you opinions regarding the letter. Once again, keep fighting the good fight.





Date: Wednesday, May 16, 2007

To: US Consular Office, Manila

Cc: California Visa Processing Center
Josue D. Castillo

Subject::




Dear Sir/Madame,

I write with utmost humility to ask for your compassion and petition your kind office to issue me, Josue Frankel M. Castillo (JFMC) an F4 immigrant visa and RETAIN THE ORIGINAL PRIORITY DATE 11-6-78. My personal details are similar to the case unanimously decided in favor for Maria T. Garcia (file number A79 001 587 in Houston) by the Bureau of Immigration Appeals (BIA) regarding the Child Status Protection Act (CSPA).

I submit the following photocopied documents to your office for your perusal and hope for a favorable and expeditious action:

1. Notice if Approval of Relative Immigration Visa Petition

2 A photocopy of Josue D. Castillo (JDC) my father’s Biographic Data (OF-230
PART I) , application for Immigrant Visa and Registration.

3. A photocopy of Gloria M. Castillo (GMC) my mother’s Biographic Data (OF-230
PART I) , application for Immigrant Visa and Registration.

4. A copy of the case filed for and decided unanimously in favor of Maria T. Garcia (file number A79 001 587 in Houston) by the BIA.



CASE HISTORY:

LOIDA C. DACANAY, an American Citizen (USC), filed a fourth preference family-base immigration in favor of her brother, JODUE D. CASTILLO, on 9/25/78 and approved on 11/6/78. Said PETITION FOR PREFERENCE CLASSIFICATION was forwarded to the UNITED STATES CONSULATE in Manila for the actual issuance of visas. JOSUE FRANKEL CASTILLO was one year old when the petition was approved. He was born November 11, 1977.

Sometime in the second quarter of the year 1998, the US Embassy in Manila notified the family of JOSUE D. CASTILLO to submit the required documents for the processing and eventual issuance of their long awaited immigrant visa to the USA. At this point in time Josue Frankel M. Castillo was only 20 years old and six months old. Because of the restrictive numerical limits the approved immigration category for the principal beneficiary was subjected to, the issuance of the immigrant visa was not acted upon immediately. Josue Frankel, the derivative beneficiary turned 21 years old. Sometime n the second quarter of year 2000, the immigrant visas were finally issued to the principal. JOSUE D. CASTILLO, and ti the derivative beneficiaries, excluding JOSUE FRANKEL who aged-out because by then, he was 22 yrs old.

As of this writing, JOSUE FRANKEL M. CASTILLO (JFMC) is 29 years old.



PETITION

This is to petition the Department of Homeland Security (DHS) to issue an immigrant visa to JFMC on the basis that he is a child derivative beneficiary of an approved immigration petition filed in favor of his father, JDC, as a fourth-preference family-based immigrant (see attached photocopy of NOTICE OF APPROVAL OF RELATIVE IMMIGRATION VISA PETITION). As such, he qualifies to be allotted an immigrant visa as an alien under the category of an unmarried son of permanent resident alien (se sect. 203(a)(2)(A) of the INA. Under such status as a child family member, he shall be “entitled to the same status and the same order of consideration provided in the respective subsection, if accompanying…. the parent” (see sect. 203(d). Immigrant visa made available for family-sponsored immigrants should be issued to JFMC (see sect. 203(e)(1) of INA).

JFMC was not issued an immigrant visa at the time visas were issued to JDC, and the other derivative beneficiaries of the petition on issue, because he was over 21 yrs by then. He aged-out.

The CSPA amended INA to provide protection to “children” who “age-out” at the time immigrant visas are issued to beneficiaries. JOSUE FRANKEL M. CASTILLO was 20 yrs old when the advise for Josue D. Castillo, the principal beneficiary, to prepare documents necessary for the processing of immigrant visas for himself (JDC) and other derivative beneficiaries was received. In one of the questionnaires (see attached OF-230 PART I) that was required by the US Embassy in Manila to be submitted, JDC was asked to list the names of persons that he wished to bring with him for immigration. Josue Frankel M. Castillo is on that kust and he was be then aged 20 yrs. At this point in time therefore, Josue Frankel M. Castillo was still a child of Josue D. Castillo because he was below the age of 21.

Sect. 3 of the CSOA which amended sect. 203 of the INA to which sect. 203 (h)(1)(A) was added, provides a reference as to when a derivative beneficiary oa a visa petition continues to qualify as a child . It says “(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 if the age of the alien…(… 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….”. Therefore it is VERY CLEAR that Josue Frankel M, Castillo is still a child of Josue D. Castillo and qualifies to be accorded an immigrant visa as a derivative beneficiary of his father’s visa petition.

If we assume that Josue Frankel M. Castillo has ceased to be a child of JDC because he was 22 yrs old when immigrant visas were finally issued to the family then, sect. 203(h)(3) would apply to his case. 203(h)(3) states: “RETENTION OF PRIORITY DATE- If the age of the alien is determined under par (1) to be over 21 yrs of age or older for the purposes of subsection (a)(2)(A) and (d), the alien’s petition shall automatically converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition”. JFMC remains unmarried so therefore the appropriate category of family-based immigrants which is unmarried sons and daughters of permanent residents. Further, being a derivative beneficiary would be the F4 immigration petition filed in favor for his father, JDC which was approved on 11-6-78. As such, finally he shall retain the priority date of his father’s petition and that is 11-6-78, for the F4 preference.

The case of Josue Frankel M. Castillo is similar to that of the case decided unanimously by the board of immigration appeals involving a Mexican girl. In re: Maria T. Garcia, file number A79 001 587 – Houston, the Board of Immigration Appeals decided in favor of Garcia’s appeal for adjustment of status. Further she got the entitlement to retain the priority date for her parent’s petition under F4 category and could use same priority date to apply for an immigrant visa under the second-preference immigrant visa category as an unmarried daughter of a Lawful Permanent Resident.

This appeal therefore, is for the consular office of the US Embassy Manila, to grant me, Josue Frankel M. Castillo an immigrant visa based on the above cited information. The approval of this request would be in concurrence with the intent of the US Congress when it passed the CSOA and that noble intent is to promote the reunification of broken families consequent to their immigration to the USA, the land of brave and of the free.

Hoping for you expeditious and favorable action,

Sincerely,

Josue Frankel M. Castillo

[JakeCastle]

From: Josue Frankel M. Castillo
178 Prudencio St. Sampaloc
Manila, Philippines 1008

To: Mr. Lawrence Mire
Immigrant Visa Chief
Consular Section
U.S. Embassy
1201 Roxas Boulevard
Manila, Philippines 1000

Cc: California Service Center
24000 Avila Road
2nd Floor, Room 2312
Laguna Niguel, CA 92677

Mr. Josue D. Castillo
1308 N. Lind Ave. Berkeley,
IL, 60163 USA

Senator Dick Durbin
230 S. Dearborn St., Ste. 3892
Chicago, IL 60604

Via e-mail to:

USA Today
Chicago Tribune
Chicago Sun-Times
Chicago Parent


Date: Wednesday, May 16, 2007


Subject: Petition for an F4 visa and RETENTION OF ORIGINAL PRIORITY DATE:
November 6, 1978


Dear Sir,

I write with utmost humility to ask for your compassion and petition your kind office to issue me, Josue Frankel M. Castillo (JFMC) an F4 immigrant visa and RETAIN THE ORIGINAL PRIORITY DATE 11-6-78. My personal details are similar to the case unanimously decided in favor for Maria T. Garcia (file number A79 001 587 in Houston) by the Bureau of Immigration Appeals (BIA) regarding the Child Status Protection Act (CSPA).

I submit the following photocopied documents to your office for your perusal and hope for a favorable and expeditious action:

1. Notice if Approval of Relative Immigration Visa Petition

2 A photocopy of Josue D. Castillo (JDC) my father’s Biographic Data (OF-230
PART I), application for Immigrant Visa and Registration.

3. A photocopy of Gloria M. Castillo (GMC) my mother’s Biographic Data (OF-
230 PART I), application for Immigrant Visa and Registration.

4. A copy of the case filed for and decided unanimously in favor of Maria T.
Garcia (file number A79 001 587 in Houston) by the BIA.

CASE HISTORY:

LOIDA C. DACANAY, an American Citizen (USC), filed a fourth preference family-base immigration in favor of her brother, JOSUE D. CASTILLO, on 9/25/78 and approved on 11/6/78. Said PETITION FOR PREFERENCE CLASSIFICATION was forwarded to the UNITED STATES CONSULATE in Manila for the actual issuance of visas. JOSUE FRANKEL CASTILLO was one year old when the petition was approved. He was born November 11, 1977.

Sometime in the second quarter of the year 1998, the US Embassy in Manila notified the family of JOSUE D. CASTILLO to submit the required documents for the processing and eventual issuance of their long awaited immigrant visa to the USA. At this point in time Josue Frankel M. Castillo was only 20 years old and six months old. Because of the restrictive numerical limits the approved immigration category for the principal beneficiary was subjected to, the issuance of the immigrant visa was not acted upon immediately. Josue Frankel, the derivative beneficiary turned 21 years old. Sometime in the second quarter of year 2000, the immigrant visas were finally issued to the principal JOSUE D. CASTILLO and his derivative beneficiaries, excluding JOSUE FRANKEL who aged-out because by then, he was 22 yrs old.

As of this writing, JOSUE FRANKEL M. CASTILLO (JFMC) is 29 years old.

PETITION

This is to petition the Department of Homeland Security (DHS) to issue an immigrant visa to JFMC on the basis that he is a child derivative beneficiary of an approved immigration petition filed in favor of his father, JDC, as a fourth-preference family-based immigrant (see attached photocopy of NOTICE OF APPROVAL OF RELATIVE IMMIGRATION VISA PETITION). As such, he qualifies to be allotted an immigrant visa as an alien under the category of an unmarried son of permanent resident alien (se sect. 203(a) (2) (A) of the INA. Under such status as a child family member, he shall be “entitled to the same status and the same order of consideration provided in the respective subsection, if accompanying…. the parent” (see sect. 203(d). Immigrant visa made available for family-sponsored immigrants should be issued to JFMC (see sect. 203(e) (1) of INA).

JFMC was not issued an immigrant visa at the time visas were issued to JDC, and the other derivative beneficiaries of the petition on issue, because he was over 21 yrs by then. He aged-out.

The CSPA amended INA to provide protection to “children” who “age-out” at the time immigrant visas are issued to beneficiaries. JOSUE FRANKEL M. CASTILLO was 20 yrs old when the advice for Josue D. Castillo, the principal beneficiary, to prepare documents necessary for the processing of immigrant visas for JDC and other derivative beneficiaries was received. One of the questionnaires (see attached OF-230 PART I) that was required by the US Embassy in Manila to be submitted, JDC was asked to list the names of persons that he wished to bring with him for immigration. Josue Frankel M. Castillo is on that list - he was then aged 20 yrs. At this point in time therefore, Josue Frankel M. Castillo was still a child of Josue D. Castillo because he was below the age of 21.

Sect. 3 of the CSPA which amended sect. 203 of the INA to which sect. 203 (h)(1)(A) was added, provides a reference when a derivative beneficiary of a visa petition continues to qualify as a child . It says “(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 if the age of the alien…(… 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….”. Therefore it is VERY CLEAR that Josue Frankel M, Castillo is still a child of Josue D. Castillo and qualifies to be accorded an immigrant visa as a derivative beneficiary of his father’s visa petition.

If we assume that Josue Frankel M. Castillo has ceased to be a child of JDC because he was 22 yrs old when immigrant visas were finally issued to the family then, sect. 203(h)(3) would apply to his case. 203(h)(3) States: “RETENTION OF PRIORITY DATE- If the age of the alien is determined under par (1) to be over 21 yrs of age or older for the purposes of subsection (a)(2)(A) and (d), the alien’s petition shall automatically converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition”. JFMC remains unmarried so therefore the appropriate category of family-based immigrants which is unmarried sons and daughters of permanent residents. Further, being a derivative beneficiary would be the F4 immigration petition filed in favor for his father, JDC which was approved on 11-6-78. As such, finally he shall retain the priority date of his father’s petition and that is 11-6-78, for the F4 preference.

The case of Josue Frankel M. Castillo is similar to that of the case decided unanimously by the board of immigration appeals involving a Mexican girl. In re: Maria T. Garcia, file number A79 001 587 – Houston, the Board of Immigration Appeals decided in favor of Garcia’s appeal for adjustment of status. Further she got the entitlement to retain the priority date for her parent’s petition under F4 category and could use same priority date to apply for an immigrant visa under the second-preference immigrant visa category as an unmarried daughter of a Lawful Permanent Resident.

This appeal therefore, is for the consular office of the US Embassy Manila, to grant me, Josue Frankel M. Castillo an immigrant visa based on the above cited information. The approval of this request would be in concurrence with the intent of the US Congress when it passed the CSPA and that noble intent is to promote the reunification of broken families consequent to their immigration to the USA, the land of opportunities, home of the brave and of the free.

Hoping for you expeditious and favorable action,

Sincerely,

Josue Frankel M. Castillo

[GKG]

Dear Sue

The Receipt Notice has 2 dates - one is the date of filing and the other is the date that received the application.
There is no PD on it. I compared it with my I-130 filed for me by my brother - In 1994 also he received the Receipt Notice and then when the application was approved he received the Approval Notice. The Approval Notice had the PD.

So.... I was wonderind if anyone could suggest a good lawyer with whom I could discuss this case.

Thanks again

GKG

Originally Posted by Susie

Hi

On your receipt notice you should have two dates, imho

One will be a receipt date the other priorty date

What are both dates?

[Susie]

Hi

Not sure if I posted this before , but just in case I did not


Might be a good idea to contact the below?




--------------------------------------------------------------------------------


BIA Rules Favorably On "Automatic Conversion" Provision In CSPA
by Cyrus D. Mehta
In “Pushing The Envelope With The Child Status Protection Act ” (November 14, 2003), this writer explored an intriguing provision, Section 3 of the Child Status Protection Act (CSPA), codified at Section 203(h)(3) of the Immigration and Nationality Act (INA), which states:

“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.”

Section 203(h)(3) allows derivative children who cannot take advantage of the CSPA to be able to automatically convert to the “appropriate category” and allow the alien to retain the original priority date.

The prior article noted the example of a sibling of a US citizen who is sponsored under the Family-based Fourth Preference (F-4) category pursuant to INA Section 203(a)(4). The US citizen brother or sister filed an I-130 petition for the sibling parent overseas several years ago. After the passage of many years (usually, over 10 years for an F-4 petition), the sibling parent obtains permanent residence upon the visa becoming available.

Unfortunately, the derivative child may not qualify because he or she is already over 21 years of age at the time of visa availability and is unable to take advantage of the age protection formula under the CSPA. For instance, such a person is over 21 years at the time or visa availability and is unable to bring his/her age under 21 years by subtracting the number of days the I-130 petition remained pending.[1] Another circumstance under which this child can be deprived of the protection of CSPA is if he or she did not seek permanent residency within one year of visa availability. [2]

When a child is unable to take advantage of the CSPA for the above reasons, the parent who has acquired legal permanent residence may file a new I-130 petition on behalf of the child under the Family-Based Preference (2B) pursuant to INA Section 203(a)(3). The wait under the new Family-based 2B preference (adult children of permanent residents) can be about ten years, which would be intolerable after the aged-out child waited even longer, and in vain, for the F-4 petition to materialize.

Fortunately, Section 203(h)(3) suggests that the child should automatically be able to convert under the Family-based (2B) preference and retain the priority date of the old F4 petition filed by the US citizen sibling on behalf of the parent.

This interpretation was recently confirmed in an unpublished decision by the Board of Immigration Appeals (BIA). In Matter of Garcia, A789-001-587 (June 16, 2006) (http://www.bibdaily.com/pdfs/Garcia%20web1034.pdf), the BIA addressed what the “appropriate category” for the automatic conversation would be in the case of a derivative beneficiary. The Board determined that “where an alien is classified as a derivative beneficiary in 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.” [3]

In Garcia, the Respondent’s parent was sponsored by her US citizen sister under the F-4 preference in 1983. Although the visa became available to the mother who adjusted her status to permanent residency in 1997, the Respondent was not able to adjust her status as a derivative as she aged out even though she had filed an adjustment of status application prior to turning 21 years. Respondent’s parent filed a Family-based 2B petition after she became a permanent resident in 1997. Respondent was placed in removal proceedings when she was well over 21 years and she renewed this unadjudicated adjustment application in removal proceedings. In order to defend herself in removal proceedings, the Respondent needed to establish that a visa number was immediately available.

The BIA agreed with Respondent’s argument that even though she had aged out, a visa was immediately available to her as she had been automatically converted to the Family 2B classification and that she had also retained the original priority date of the F4 petition, which was filed way back in 1983. Thus, a visa number was immediately available and she could, therefore, adjust status as a defense against removal. The BIA seemed to also suggest that there was no need to file a new I-130 petition under the Family 2B preference, even though one was filed in Garcia, since Section 203(h)(3) provided for automatic conversion to the appropriate category.

Although the government argued that the CSPA should not retroactively apply to the Respondent – the mother obtained legal permanent residence way before the effective date of the CSPA on August 6, 2002 and Respondent was over 21 by then – the BIA noted that the CSPA retroactively applied to any person who is a beneficiary of a petition approved before August 6, 2002 and if no final determination has been made on the adjustment application.<[4] Since the Respondent’s adjustment application had been filed in 1997 and remained pending until 2004, after the CSPA had become effective, the BIA held that Section 203(h)(3) applied to the Respondent.

This writer applauds the BIA’s decision in Garcia as it is a reasonable interpretation of Section 203(h)(3), and is also the first from a government agency after the enactment of the CSPA. However, it appears that a pending immigrant visa or adjustment of status application is required post-August 6, 2002, especially if the child aged out before August 6, 2002. In Garcia, the Respondent who had aged out before August 6, 2002, was fortuitous to have filed an adjustment application before she turned 21 and which remained unadjudicated until she was put into removal proceedings. Most will not be so fortunate.

On the other hand, Section 203(h)(3) ought to readily apply to a child who has aged out on or after August 6, 2002 even if no adjustment or immigrant visa application was filed. If the child aged out prior to August 6, 2002, he or she must have applied for an immigrant visa or adjustment of status like the Respondent in Garcia.

While Garcia is not a precedent decision, the holding can still be advanced to benefit “aged out” children who are not protected by the CSPA but could take advantage of the priority date of the original petition filed on behalf of the parent.


1 Section 203(h)(1) of the INA provides that the age of the alien at the time of visa availability can be subtracted by the number of days that the petition remained pending. If the alien child is 21 years and 3 months on the date of the visa availability, and the I-130 petition took over 3 months to get approved, that amount of time can be subtracted from the child’s age to bring him or her under the age of 21 years.
2Section 203(h)(1) further provides that the alien must seek permanent residence within one year of visa availability.
3See Mary A. Kenney, 2006 Update On The Child Status Protection Act: New Administrative Interpretations, Practice Advisory, American Immigration Law Foundation (www.ailf.org).
4 CSPA Section 8. See Also Department of State cable dated January 3, 2003 (03 State – 015049) and Immigration and Naturalization Service memo dated February 14, 2003 (HQADN 70/6.1.1).


This article originally appeared on www.cyrusmehta.com on September 15, 2006.


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About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City and is the managing member of Cyrus D. Mehta & Associates, P.L.L.C. He is the Chair of the Board of Trustees of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York and former Chair of the Committee on Immigration and Nationality Law of the same Association. The views expressed in this article do not necessarily represent the views of ABCNY or AILF. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555.

[GKG]

Hi Sue, Munish and All

So I sent a letter to the Cal Service centre requesting that my daughter get the PD of my earlier application. I tracked it and it was received by them.
But 2 days back it was sent back to me on my Chicago address with a covering letter stating that I need to visit the website and do the needful - which means nothing. As there is no place there to make such a request.

So I am back to square one!!
Any hope that this law will be implemented in the right spirit?

Thanks

GKG

Originally Posted by GKG

Dear Sue

The Receipt Notice has 2 dates - one is the date of filing and the other is the date that received the application.
There is no PD on it. I compared it with my I-130 filed for me by my brother - In 1994 also he received the Receipt Notice and then when the application was approved he received the Approval Notice. The Approval Notice had the PD.

So.... I was wonderind if anyone could suggest a good lawyer with whom I could discuss this case.

Thanks again

GKG