Brother’s unmarried son who was under 21 years

#1
Dear Concern,

I’d like to know, as per the procedure, I’ve applied from I-130 for my brother back in 2004 and I didn’t need to file separate petitions for my brother’s unmarried son who was under 21 years of age during that period of time.

Now in 2015 my brother’s case got live and he is about to proceed with the next step however my question is:

While I applied for my brother back in 2004, his son was under 21 then but now when case got alive his son is not certainly 21 but 29 therefore will his son be able to come along with him or not?

Eagerly looking forward to your answer. Thanks!
 

newacct

Well-Known Member
#2
It depends on how much his age is reduced by CSPA (his age is reduced by the amount of time the petition took to approve). How long did it take the petition to be approved? It is unlikely it took 8 years. If it was less than 8 years, then the child would have aged out and cannot immigrate as a derivative.
 

newacct

Well-Known Member
#4
The BIA ruled that the CSPA doesn't apply to family fourth preference and the Supreme Court sided with the BIA.
The CSPA provision for determining whether a child has aged out (INA 203(h)(1)) "applies" to all family preference categories.

You are thinking about a separate little-used CSPA provision (INA 203(h)(3)) for retaining priority date and automatic conversion of category when the derivative child has already aged out according to the CSPA aging out rules, and this provision only applies to derivatives of F2A (which convert to F2B, just like if the child was originally separately petitioned in F2A).
 

ImmGuru35

Registered Users (C)
#5
In Matter of Wang,51 the BIA narrowly interpreted this provision by holding that the priority date retention and automatic conversion benefits do not apply to a derivative beneficiary of a 4th preference family-based visa petition. Instead, the BIA found that this section only would apply to visa petitions filed by an LPR parent for a child as either a direct or derivative beneficiary. Thus, the BIA found that Wang’s aged-out daughter—who had been named as a derivative beneficiary on the 4th preference visa petition filed for Wang by his brother—could not retain the priority date of this 4th preference visa petition.

Matter of Wang was challenged in several federal court cases, including a case that eventually reached the Supreme Court. In Scialabba v. Cuellar de Osorio, a plurality of the Court upheld the BIA’s interpretation of INA § 203(h)(3).52 Five Supreme Court Justices agreed that §203(h)(3) was ambiguous—although there was some disagreement amongst them as to the nature of this ambiguity—and that Matter of Wang was a reasonable interpretation of this ambiguous provision.53

As a consequence, the alternative benefit for aged-out beneficiaries found in §203(h)(3) applies only to visa petitions filed by an LPR parent for a child as either a direct or derivative beneficiary; that is, it only will apply to those in the family 2A preference category. Aged-out derivative beneficiaries in the other family-based categories, as well as derivative beneficiaries of employment-based petitions and of diversity visa applications will not benefit from this provision.
 

newacct

Well-Known Member
#6
In Matter of Wang,51 the BIA narrowly interpreted this provision by holding that the priority date retention and automatic conversion benefits do not apply to a derivative beneficiary of a 4th preference family-based visa petition. Instead, the BIA found that this section only would apply to visa petitions filed by an LPR parent for a child as either a direct or derivative beneficiary. Thus, the BIA found that Wang’s aged-out daughter—who had been named as a derivative beneficiary on the 4th preference visa petition filed for Wang by his brother—could not retain the priority date of this 4th preference visa petition.

Matter of Wang was challenged in several federal court cases, including a case that eventually reached the Supreme Court. In Scialabba v. Cuellar de Osorio, a plurality of the Court upheld the BIA’s interpretation of INA § 203(h)(3).52 Five Supreme Court Justices agreed that §203(h)(3) was ambiguous—although there was some disagreement amongst them as to the nature of this ambiguity—and that Matter of Wang was a reasonable interpretation of this ambiguous provision.53

As a consequence, the alternative benefit for aged-out beneficiaries found in §203(h)(3) applies only to visa petitions filed by an LPR parent for a child as either a direct or derivative beneficiary; that is, it only will apply to those in the family 2A preference category. Aged-out derivative beneficiaries in the other family-based categories, as well as derivative beneficiaries of employment-based petitions and of diversity visa applications will not benefit from this provision.
That is what I said.
 
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