This is other grate article I found by Mr Lee
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 present15, 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 date16. 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 effect17 and that the widest possible range should be given to possible beneficiaries of the statute18. 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, 1994.19
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 application20. 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."21 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.22 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.23 The Justice Department opined that H.R. 1209 's retroactivity could affect determinations made as long ago as 1952.24 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.25
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/DOS26. The Act requires the beneficiary's case to still be alive on August 6, 200227. 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."28 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.
would like you to read the following article...
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A CRITICAL LOOK AT BCIS'/DOS' INTERPRETATIONS OF THE CSPA" By Alan Lee
Please Click on the following Link to read the article
http://www.alanleelaw.com/english/articles/aCSPAfootnoted.html
