(As per readers' demand, we are also offering the footnoted
version which appeared in two parts on the immigration
law portal, ILW.com, on 7/2/03-7/3/03).
A Critical Look at BCIS '/DOS ' Interpretations of the CSPA*
*Footnotes omitted.
To date, the Bureau of Citizenship and Immigration Services
(BCIS) and Department of State (DOS) have issued five memos
on the critical issue of who is eligible under section 204
of the Immigration & Nationality Act (covering family
based, employment based, and diversity visa cases) for the
benefits of the Child Status Protection Act (CSPA) which was
signed into law on August 6, 2002. Regulations have been drafted
but not yet implemented. The BCIS has also been sending representatives
from Washington to explain BCIS thinking on the law to local
BCIS officers and the public. This article will take a critical
look at BCIS and DOS' on-going interpretations to determine
basic eligibility under section 204. The Department of State
has said that it is working closely with the BCIS on questions
of interpretation, and so it must be assumed that DOS' view
is that of the BCIS.
An overview of official thinking in 204 cases (not including
immediate relative situations) as expressed in the memos and
BCIS meeting with the public in New York on April 10, 2003,
is that the first step is determining whether the case itself
qualifies for CSPA consideration and that—with few exceptions—the
CSPA will only benefit individuals with adjustment of status
or immigrant visa applications pending on August 6, 2002,
where a visa petition under section 204 was previously approved
and individuals aged out before that day. The Department of
State has postulated that the CSPA will also apply if the
visa petition was approved before August 6, 2002, but a child
did not turn the age of 21 until August 6, 2002. The official
thinking also is that the CSPA will apply if a petition under
section 204 was still pending on August 6, 2002 regardless
of whether the child aged out before or after that date.
BCIS and DOS- after making this initial determination of
whether the case qualifies under the CSPA- instruct that the
next step is determining whether the particular individual
qualifies under the CSPA as a child. For petitions qualifying
under a preference classification, the child's age is only
locked in for CSPA benefits where a visa petition has been
filed and approved, and the priority date is available. From
the "lock-in" date, the child's age must with few
exceptions be finally calculated to be under 21 on August
6, 2002, to qualify. Setoffs that individuals can use are
the period of time that a petition has been pending and the
45 days available to many individuals under the Patriot Act.
In examining the BCIS/DOS interpretations in light of the
CSPA statute and legislative history, the final analysis must
be that the official thinking in Washington thus far is incomplete,
strained and incorrect. The restrictive interpretation on
eligibility cannot be said to stem from the congressional
debate.
I. The CSPA's Relevant Sections to 204 Eligibility
To have a proper understanding of the issues at stake here
requires an in-depth look at the CSPA statute itself, in particular
sections 3 and 8:
"Sec. 3. Treatment of Certain
Unmarried Sons and Daughters Seeking Status as Family-Sponsored,
Employment-Based, and Diversity Immigrants.
"Section 203 of the Immigration and Nationality Act (8
U.S.C. 1153) is amended by adding at the end the following:
“(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 inparagraph (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) (4) 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.
"Sec. 8. Effective Date.
"The amendments made by this Act shall take effect
on the date of the enactment of this Act and shall apply
to any alien who is a derivative beneficiary or any other
beneficiary of—
"(1) a petition for classification under section 204
of the Immigration and Nationality Act (8 U.S.C. 1154) approved
before such date but only if a final determination has not
been made on the beneficiary’s application for an
immigrant visa or adjustment of status to lawful permanent
residence pursuant to such approved petition;
"(2) a petition for classification under section 204
of the Immigration and Nationality Act (8 U.S.C. 154) pending
on or after such date; or
"(3) an application pending before the Department of
Justice of the Department of State on or after such date."
Close reading of the law demonstrates the errors of the
BCIS/DOS interpretations. II. Why a Restrictive Interpretation
is not Warranted Concerning Already Approved Petitions on
the Date of Enactment for Derivative Beneficiaries.
The first lines of the effective date section (Section 8)
clearly state that the CSPA takes effect on the date of enactment
(August 6, 2002) and that it applies to any alien "who
is a derivative beneficiary or any other beneficiary.... "
This phrase modifies and connects with all 3 parts of section
8. The initial question here is whether the word "is"
should be construed as meaning the child must have been under
21 on the date of enactment since the logical argument is
that a child no longer qualifies as a derivative beneficiary
or any other type of beneficiary if he/she has already aged
out. However, this cannot serve as the line of demarcation
as both BCIS and DOS have taken the position under the second
part of section 8 eligibility affecting beneficiaries of "(2)
a petition for classification under section 204 of the Immigration
and Nationality Act (8 USC 1154) pending on or after such
day," that this situation would still qualify for CSPA
benefits regardless of whether the individual aged out before
or after August 6, 2002.
To practitioners in the field, the most important interpretation
deals with Part 1 of section 8, where a petition was already
approved prior to August 6, 2002, and the beneficiary or derivative
beneficiary also aged out prior to that date. Indeed DOS stated
that most of the cases posts would be likely to see in the
first few years would be cases in which the petition was approved
before August 6, 2002. Part 1 places a restrictive clause
on pre-August 2002 approved petitions that individuals can
only benefit if a final determination had not yet been made
on the "beneficiary's application" by that date.
BCIS and DOS have taken Part 1 to mean that, with few exceptions,
any beneficiary or derivative beneficiary had to have a pending
immigrant visa or adjustment of status application on August
6, 2002 to qualify. Yet the statute does not warrant this
reading as applied to derivative beneficiaries. Part 1 clearly
states that a final determination must not have been made
on the beneficiary's application, not on a derivative beneficiary's
application. In point of fact, the statute does not require
any application at all by a derivative beneficiary. The fact
that both "derivative beneficiary" and "any
other beneficiary" are mentioned in the first lines of
section 8 but only the "beneficiary's application"
is mentioned in Part 1 shows that, in a proper reading of
the statute, the burden is upon the principal beneficiary
to maintain a live application as of the date of enactment,
and that any derivative beneficiary should be able to benefit
even if aged out by August 6, 2002. As stated above, the word
"is" in the first lines of section 8 has not been
construed by either BCIS or DOS as a limitation on age as
of August 6, 2002.
III. Why a Restrictive Interpretation is not Warranted Concerning
the Lock-In Date for Many Aged-Out Children.
The lock-in date of visa petition approval and priority date
becoming current is applicable to situations where aged-out
children seek to immigrate as children under the age of 21,
but has no applicability where aged-out children have clearly
missed that boat and are relying on CSPA Section 3 eligibility.
Section 3 of the CSPA describes the treatment to be afforded
certain unmarried sons and daughters seeking status as family
sponsored, employment based, and diversity immigrants. Part
1 defines how an alien can satisfy the age requirement of
a child through looking at the age when an immigrant visa
number becomes available or the date that the parent’s
number becomes available in derivative cases with credit given
for the time that the petition was pending. In describing
the petitions covered, Section 3, part (h)(2), subsection
A includes those for children under the age of 21 and unmarried
of permanent residents, and subsection B those for derivative
beneficiary children (alien children who are not directly
petitioned for, but piggyback on petitions for the parents)
where the parents are immigrating on the basis of family relations,
employment, or diversity visas (visa lottery).
Directly beneath, part 3 reads that if an alien after going
through the calculation of age using the setoffs for time
of petition pending [and 45 days under the Patriot Act] is
over the age of 21 for purposes of any of the petitions described
in parts of section 3, the petition is to be converted to
the appropriate category, "[a]nd the alien shall retain
the original priority date issued upon receipt of the original
petition."
All five memos to date have dealt with situations in which
petitions were approved and children aged out prior to the
enactment date of the CSPA as these situations are immediate.
BCIS and DOS should in the future issue guidance on the treatment
of those cases falling within part 2 of Section 8 in which
petitions are pending or filed on or after 8/6/02, the priority
date will not be current for many years, and the derivative
beneficiary ages out while the petition is pending but years
before the priority date is available for visa issuance. As
clear eligibility under the statute is present, BCIS can be
expected to reference the retention of priority date part
of section 3 to the effect that the petitions should be converted
automatically to the appropriate category under which aged-out
children would be eligible to immigrate at a later time when
the priority date is current. In all cases, where applicable,
aged-out children would convert to the F-2B category for unmarried
sons and daughters of permanent residents with a retention
of the parent's priority date. This would mean that in many
cases involving extended waiting times for parents, the aged
out children should be able to save years in immigrating to
this country. For example, in the case of parents immigrating
in 2018 on the basis of a fourth preference sibling petition
with a 2002 priority date where the child was 15 years of
age at the time for that petition was filed, the aged out
child should be able to use the 2002 priority date for an
automatically converted petition to the F-2B category in 2018.
As the priority date under the F-2B category would most likely
be current for visa issuance, the speed of immigration would
depend upon the mechanism used by BCIS/DOS to effect the automatic
conversion. In a regular conversion case today where a parent
previously petitioned for his or her spouse and the child
was a derivative beneficiary who aged out in the process,
the law requires the petitioner to file a new I-130 petition
to retain the old priority date. In this case, a mechanism
would have to be devised without the necessity of a further
petition because of the automatic conversion provision. It
is entirely possible that the parents can go through a notification
process either through the BCIS or any other procedure that
is acceptable to BCIS/DOS. Whether this automatic conversion
would be made prior to the parents' immigration so that the
family could immigrate together appears highly unlikely as
the appropriate category for conversion would only become
available when the parents actually immigrate. Because of
the need to have an "appropriate category" under
which to immigrate, aged out children who have married would
most likely not be able to benefit as only U.S. citizen parents
can sponsor married sons or daughters.
The same solution should apply for children who aged out
prior to August 6, 2002, where petitions for the parents were
approved prior to that date, but in which final determinations
had not yet been made on the parent's cases by that date.
Section 8 part 1 clearly speaks about a final determination
being made on the "beneficiary's" application rather
than the derivative beneficiary's. The first lines of section
8 delineate derivative beneficiaries as being covered by the
section. Ageing out of the derivative beneficiaries prior
to the priority date becoming current cannot foreclose eligibility
under the CSPA as such a reading would be in violation of
the rules of statutory construction that all terms in a statute
are to be given effect and that the widest possible range
should be given to possible beneficiaries of the statute.
Thus these aged out children should be deemed covered by Section
3, part 3 and allowed to retain the original priority date
of the parent's petition for purposes of their own immigration
in the appropriate category. For example, where the parent
is a beneficiary of an F-4 sibling petition with a priority
date of 1991, the petition is approved in 1992, the beneficiary
ages out in 1995, and the parent is only now immigrating,
the aged out child should be able to swiftly immigrate under
the F-2B category using the parent's 1991 priority date. Of
course, if the parent immigrates under other categories with
later priority dates, the aged out child would have to wait
longer to immigrate, e.g.-With a parent's priority date of
March 15, 1998, under the EB-3 category for professional/skilled
workers, the aged out child would have to wait for some years
for the date to clear under the F-2B category which as of
June 2003 is open for individuals filing prior to October
22, 1994.
IV. A Less Restrictive Interpretation is Not Refuted by the
Legislative Record
DOS in answer to questions posed by the American Immigration
Lawyers Association (AILA) on March 27, 2003, as to whether
the CSPA would cover petitions that had been approved and
the beneficiary aged out--both events happening before 8/6/02--
in situations where the beneficiary had not made applications
for immigration and thus not had "final determinations"
which would bar them from eligibility under the CSPA, stated
that ageing out could be considered a final determination
and that CSPA section 8's reference to the "beneficiary's
application" could be interpreted as requiring that the
beneficiary actually have made an application. DOS then said
that AILA's interpretation "which would result in resurrecting
cases where the alien had aged out years ago and failed to
apply because of that, would present very serious problems
of administration and would not appear to effectuate Congress's
intent to place a meaningful limits on the law's retroactivity."
However, this view is not supported by the legislative history
as there was no debate on the question of retroactivity. The
only material on this subject is a Department of Justice letter
contained in House Report 107-45 accompanying the House bill,
H.R. 1209, in April 2001 when the legislation only allowed
relief to immediate relatives of U.S. citizens. Concerns were
raised by the Department of Justice as the bill at that stage
would have applied to all cases in which children aged out
during the time of processing with either agency “before,
on, or after” the date of enactment. The Justice Department
opined that H.R. 1209 's retroactivity could affect determinations
made as long ago as 1952. DOJ undoubtedly envisioned the retroactivity
clause as affecting all past adjudications since 1952 because
aged-out children who had immigrated since then in the F-2B
or other category would have to have been reclassified as
immediate relatives on INS entry records. The Department of
Justice then wrote,
The general practice with respect to changes in the law is
that the amendments apply to future petitions and those pending
on the date of enactment, but not to determinations made before
the date of enactment. We understand, however, that Congress
may seek to address cases of children who have aged out in
the past. Therefore, if Congress considers it necessary to
address past cases, we would prefer reasonable limits to retroactivity,
such as making the changes retroactively applicable only to
petitions denied as a result of the beneficiary aging out
within a specified period of time. A more limited retroactivity
would provide relief in recent ageout cases under current
or recent immigration law while avoiding the harmful effects
and legal complications of potentially reopening cases decided
decades ago.
Retroactivity under the correct interpretation of the CSPA
as outlined above would not upset this expectation of the
Justice Department. Congress did give a limited retroactivity
to the CSPA and the BCIS or DOS will not have to look back
any further than August 6, 2002 with limited exceptions as
delineated by the BCIS/DOS. The Act requires the beneficiary's
case to still be alive on August 6, 2002. Therefore it would
not apply where no case was before either the BCIS or DOS
on that date. Neither agency would have to worry about digging
out cases concluded decades ago. The Act only provides that
a derivative beneficiary who aged out prior to August 6, 2002
now immigrate under the "appropriate category."
Nothing compels either BCIS or DOS to reopen files from long
ago to assign parents' preference categories to aged out children
who may have immigrated under other categories.
V. Rules of Statutory Construction Demand that the CSPA be
Construed Liberally
The rules of statutory construction of legislation hold that
all words in the law be given effect. Only by ignoring the
significance of the word "beneficiary's" in Section
8 part 1 when seen in light of the words "derivative
beneficiary or any other beneficiary" in the first lines
of that section and the entire text of CSPA Section 3 (h)
(3) can BCIS/DOS justify their present interpretations of
the CSPA. Such selective use of terms in legislation is not
allowed. The plain meaning of the words is controlling, and
they mean that a derivative beneficiary is an intended beneficiary
even when he/she aged out and the petition was approved before
the date of enactment so long as the beneficiary (in most
cases the parents) had not yet had a final determination on
their applications for immigrant visas or adjustment of status
to permanent residence pursuant to the approved petition by
August 6, 2002. Also that aliens who age out and cannot be
classified as children are entitled to immigrate under an
“appropriate category” using the priority date
of the original petition. The canons of construction lend
support here in dictating that ameliorative legislation be
given full effect, and that interpretations which restrict
the benefits of the legislation not be upheld. Further, if
there are ambiguities in the law, they are to be interpreted
in favor of the alien.
VI. Conclusion
The CSPA serves a wonderful purpose allowing families to
keep together who have been waiting many years to immigrate
together to the United States. Why should the child of 15
when the petition was filed who is now still single and many
times still living with the parents but has unfortunately
aged out in the intervening years of waiting be barred from
coming to the U.S. another 7 to 10 years after his/her parents
immigrate to this country? As ameliorative legislation, the
CSPA deserves to affect the widest group of aged out children
that it can reach.
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