Automatic conversion clause of CSPA

[Iluvus]

Based on the CSPA quote below:

Quote from Section 3 of CSPA law:
“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.”


The question is, in an F4 category case, how does USICS apply or interpret the automatic conversion aspect? Does that mean that the derivative who has aged out will be able to adjust status with the beneficiary (assuming the priority date of the appropriate category is current)?
Or will the derivative have to wait until the beneficiary’s permanent resident application is approved, and then have a new 1-130 filed on his behalf and then ask to retain the original priority date? If the latter is the case, that doesn’t sound automatic to me…

So far, USICS has had some inconsistencies in the way they interpret/apply this clause. Has anyone heard about, or had any experience with this issue?


Thanks!

[austriacus]

Hi Iluvus, I'll attempt to help you answer your question (which I think deserves a consultation with a lawyer but we can see if we can get some insight) but in return, can you point me to some good CSPA references you may have found, and to the text of the CSPA and perhaps relevant USCIS memos giving more guidance?

Here is an article I found for you which I think is from 2006, so fairly recent. Some relevant sections:


But derivative children who age out in the first, third, or fourth preference categories, after applying the CSPA principles, will have to wait until their parent becomes an LPR and that parent files a new I-130 petition on their behalf. This would be a second preference 2B category petition. The same is true if the principal beneficiary is a child/son/daughter of an LPR who has a derivative child and the derivative child ages out. One of the biggest unanswered questions is whether the CSPA allows the aged-out child to retain the original priority date of the I-130 petition that was filed on behalf of their parent. If so, most of these aged-out children would be current in the 2B category and would be eligible to adjust status or proceed with consular processing. If not, they would be facing another multi-year backlog.

Although the USCIS has not issued any definitive memo addressing this issue, the agency has taken the position that these aged-out children may not retain the original priority date. According to the USCIS, the CSPA did not change the existing law in this situation; it simply formalized the policy concerning when a beneficiary converts automatically from the second preference 2A into the 2B category. The statute now states that the child'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." [5] All parties would agree that when the 2A child of an LPR ages out, the LPR parent petitioner does not need to file a separate I-130 petition. The child automatically converts to the 2B category beneficiary and retains the original priority date.

But the USCIS does not apply that principle to derivatives in the first, third, or fourth preference categories, or to the derivatives of a child/son/daughter of an LPR in the second preference category. According to the agency, these derivatives do not automatically convert to any family-based category when they age out of derivative status. Therefore, when their parent immigrates or adjusts to LPR status and files a subsequent I-130 petition on their behalf, they acquire a new priority date.

The argument in favor of priority date retention also rests on the plain language of section 3 of the CSPA. The provision setting forth automatic conversion and retention of priority date makes reference to applications filed under both INA § 203(a)(2)(A) and INA § 203(d). [6] The first statutory provision - INA § 203(a)(2)(A) - relates to second preference 2A children aging out and moving into the 2B category. But the second statutory provision - INA § 203(d) - refers to derivatives in all the family-based preference categories. Therefore, it appears that Congress intended to include other derivatives in this paragraph.

In another unpublished decision the BIA recently held that the CSPA allows for priority date retention when the LPR parent files a new I-130 for the once-derivative and now aged-out child. The respondent in this case was a derivative child in the fourth preference category who aged out. When the child's mother immigrated, she filed a new I-130 for the 22-year-old daughter in the second preference 2B category. The BIA held that "where an alien was classified as a derivative beneficiary of the original petition, the 'appropriate category' for purposes of section 203(h) is that which applies to the 'aged-out' derivative vis-a-vis the principal beneficiary of the original petition." In this case the BIA held that the aged-out child automatically converted to the second preference 2B category, since she was still the unmarried child of the LPR parent (the principal beneficiary). She was able to retain the priority date of the original fourth preference petition, making her current in the 2B category and eligible to file for adjustment of status. In re: Maria T. Garcia, No. A-79-001-587 (6/16/06)

[xerostomic]

In another unpublished decision the BIA recently held that the CSPA allows for priority date retention when the LPR parent files a new I-130 for the once-derivative and now aged-out child. The respondent in this case was a derivative child in the fourth preference category who aged out. When the child's mother immigrated, she filed a new I-130 for the 22-year-old daughter in the second preference 2B category. The BIA held that "where an alien was classified as a derivative beneficiary of the original petition, the 'appropriate category' for purposes of section 203(h) is that which applies to the 'aged-out' derivative vis-a-vis the principal beneficiary of the original petition." In this case the BIA held that the aged-out child automatically converted to the second preference 2B category, since she was still the unmarried child of the LPR parent (the principal beneficiary). She was able to retain the priority date of the original fourth preference petition, making her current in the 2B category and eligible to file for adjustment of status. In re: Maria T. Garcia, No. A-79-001-587 (6/16/06)[/I][/QUOTE]

Is it possible to request for a change in PD by making one of such decisions a base. Like my new PD is 27th Nov 2002, but if I had to retain my orignal PD then it could have been 1985. After surfing for a while I feel that CSPA is not very clear for many.

[Iluvus]

Thank you for your response, austriacus and xerostomic. I have probably read every single article out there on this issue, and because of the inconsistencies in the interpretation, I was curious about people's actual experiences on the issue because it would seem that USICS handles these kind of issues on a case-by-case basis.

I also know that these cases are not all that common, especially under the F4 category, since most of those cases go through the CP route instead of the AOS. But since this clause also applies to other categories, I will also like to know about any AOS experiences under any of the other categories where they might have tried to apply the automatic conversion clause.

I observed that there were quite a few cases on "retention of priority date" but hardly any on automatic conversion, and I was just wondering there has to be some people out there who have tried to make a case for the automatic conversion clause, because it is what the CSPA law says.


Here are some other relevant articles on the issue:

http://www.cyrusmehta.com/News.aspx?...ge=15&Year=All
http://www.asianjournal.com/?c=160&a=16685
http://www.ilw.com/articles/2006,0921-wheeler.shtm

[susan ward]

Originally Posted by Iluvus

Thank you for your response, austriacus and xerostomic. I have probably read every single article out there on this issue, and because of the inconsistencies in the interpretation, I was curious about people's actual experiences on the issue because it would seem that USICS handles these kind of issues on a case-by-case basis.

I also know that these cases are not all that common, especially under the F4 category, since most of those cases go through the CP route instead of the AOS. But since this clause also applies to other categories, I will also like to know about any AOS experiences under any of the other categories where they might have tried to apply the automatic conversion clause.

I observed that there were quite a few cases on "retention of priority date" but hardly any on automatic conversion, and I was just wondering there has to be some people out there who have tried to make a case for the automatic conversion clause, because it is what the CSPA law says.


Here are some other relevant articles on the issue:

http://www.cyrusmehta.com/News.aspx?...ge=15&Year=All
http://www.asianjournal.com/?c=160&a=16685
http://www.ilw.com/articles/2006,0921-wheeler.shtm

Thanks for the links, I will if thats ok copy and paste to www.esxpatsvoice.org thread on aging out. Think there is a member in a simular situation

[susan ward]

Finally, BIA has issued a decision on case which involved 203(h)(3) involving automatic conversion and priority date retention provision.

Here are some cool links stating that.

www.ailf.org/lac/admin_interpretation_90606.pdf
http://www.cyrusmehta.com/news_cyrus.asp?news_id=1379
http://www.shusterman.com/toc-gc.html#2C
http://www.shusterman.com/siu.html

[indianbrigade]

Hi,

I am a derivatve beneficiary under the F4 category. And I am searching for cases where aged out derivative beneficiary is able to retain priority date of his/her parent's petition under CSPA?

I am able to find only one famous case of Maria. If anyone else is out there who has tried for retention of priority date.? What happened? Any experiences???? Please reply......This thread seems to be recent one.......

Thanks,

[jahkissez]

I'm in a similar position.
My father's sister filed the I-130 for him in November 1997, then I was 15, my brother 12. We were approved in February 1998, a mere 4 months later. I am now 25, I will be 26 in September. Last year November my father got a notice from UCIS asking where he wanted his correspondence to be sent, he also got the package where he paid his visa fee as well as submitted copies of his passport, police records, etc; my brother and I were not included on that.

I would really like to know the possibility of my brother and I being able to immigrate with our father if/when he is approved at him immigrant visa interview. Can anyone shed any thought on this? Thanks.

[susan ward]

Originally Posted by jahkissez

I'm in a similar position.
My father's sister filed the I-130 for him in November 1997, then I was 15, my brother 12. We were approved in February 1998, a mere 4 months later. I am now 25, I will be 26 in September. Last year November my father got a notice from UCIS asking where he wanted his correspondence to be sent, he also got the package where he paid his visa fee as well as submitted copies of his passport, police records, etc; my brother and I were not included on that.

I would really like to know the possibility of my brother and I being able to immigrate with our father if/when he is approved at him immigrant visa interview. Can anyone shed any thought on this? Thanks.

I think your brother and you were not included in the packet as you were over 21 years on the day your father got green card approval, or have I misunderstood?

[Iluvus]

Originally Posted by indianbrigade

Hi,

I am a derivatve beneficiary under the F4 category. And I am searching for cases where aged out derivative beneficiary is able to retain priority date of his/her parent's petition under CSPA?

I am able to find only one famous case of Maria. If anyone else is out there who has tried for retention of priority date.? What happened? Any experiences???? Please reply......This thread seems to be recent one.......

Thanks,

I see no reason why you cant retain your priority date as the law states that clearly in my quote of the CSPA law above. Unfortunately there are is hardly any published cases on this issue, but I have read about people's personal experiences where they were able to retain their date. I have also checked with a few lawyers who confirmed that it can be done. All you have to do is to educate USICS on this issue by attaching a memo of the priority date retention clause to your F2b application and request to retain the original priority date. You might also want to use a good CSPA lawyer for this so that USICS can realise that you know what you are talking about.

Originally Posted by jahkissez

I'm in a similar position.
My father's sister filed the I-130 for him in November 1997, then I was 15, my brother 12. We were approved in February 1998, a mere 4 months later. I am now 25, I will be 26 in September. Last year November my father got a notice from UCIS asking where he wanted his correspondence to be sent, he also got the package where he paid his visa fee as well as submitted copies of his passport, police records, etc; my brother and I were not included on that.

I would really like to know the possibility of my brother and I being able to immigrate with our father if/when he is approved at him immigrant visa interview. Can anyone shed any thought on this? Thanks.

You wouldnt be able to immigrate with your father because you will be over the age of 21 after the CSPA calculations have been applied to your case, however, you should be able to take advantage of the retention of priority date clause of CSPA. Your father can file an F2b application for you once he is approved and ask to retain the original priority date. When that is done, your prioriry date will be current under the F2b category which means they can process your application almost immediately

[susan ward]

interesting reading

http://expatsvoice.org/forum/showthread.php?t=23

[jahkissez]

Originally Posted by susan ward

I think your brother and you were not included in the packet as you were over 21 years on the day your father got green card approval, or have I misunderstood?

He hasn't got the green card yet, not even his interview, he's waiting for the date.
But we weren't included on the forms he got from the NVC- we aged out.
I Just want to know if there is a chance that we may immigrate with him when he either goes for the interview or if he files I-130 for us.

[jahkissez]

Originally Posted by Iluvus

I
You wouldnt be able to immigrate with your father because you will be over the age of 21 after the CSPA calculations have been applied to your case, however, you should be able to take advantage of the retention of priority date clause of CSPA. Your father can file an F2b application for you once he is approved and ask to retain the original priority date. When that is done, your prioriry date will be current under the F2b category which means they can process your application almost immediately

This is what I wanted to be clear about.
I keep getting ambiguous reading about it..
Thanks much.
Hope u get thru too