Matter of Wang
| Citation | 25 I&N Dec. 28 |
| Decision Date | 16 June 2009 |
| Docket Number | File A088 484 947.,Interim Decision No. 3646. |
| Parties | Matter of Xiuyi WANG, Beneficiary of visa petition filed by Zhuomin Wang, Petitioner. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated March 25, 2008, the director of the California Service Center approved a visa petition filed by the lawful permanent resident petitioner on behalf of the beneficiary as his unmarried daughter. Although the director approved the visa petition, she denied the petitioner's request to assign an earlier priority date to the visa petition. Specifically, the director accorded the visa petition a priority date of September 5, 2006, which is the date the visa petition was filed. However, the petitioner sought an earlier priority date of December 28, 1992, the date that a previous visa petition had been filed on the petitioner's behalf by his sister, of which his daughter was a derivative beneficiary. In view of the important questions raised regarding which priority date to assign to a visa petition, the director certified her decision to the Board for review. The director's decision will be affirmed. The request for oral argument is denied.
The petitioner is a native and citizen of China. On December 28, 1992, his United States citizen sister filed a Petition for Alien Relative (Form I-130) on his behalf pursuant to section 203(a)(4) of the Immigration and Nationality Act, 8 U.S.C. § 1153(a)(4) (Supp. IV 1992). That visa petition was approved 2 months later on February 24, 1993, and was accorded a priority date of December 28, 1992. The petitioner was the primary beneficiary of that fourth-preference visa petition (hereinafter referred to as the "1992 visa petition"), and his wife and three children were listed as derivative beneficiaries. The beneficiary of the instant visa petition is his daughter, who was born on November 6, 1982, and was 10 years old when the 1992 petition was filed.
In February 2005 visas became available for nationals of China who were beneficiaries of fourth-preference petitions with a priority date in 1992. See Department of State Visa Bulletin, Vol. III, No. 78 (Feb. 2005). Accordingly, the petitioner was admitted to the United States as a lawful permanent resident on October 3, 2005. By this time, however, the beneficiary was 22 years of age and no longer qualified as a "child" who could derive beneficiary status from the petition filed by her aunt on behalf of her father. See sections 101(b)(1), 203(d) of the Act, 8 U.S.C. §§ 1101(b), 1153(d) (2006).
On September 5, 2006, the petitioner filed a second-preference visa petition on behalf of the beneficiary as his unmarried daughter pursuant to section 203(a)(2) of the Act (hereinafter referred to as the "2006 visa petition"). In a cover letter sent with the visa petition, the petitioner requested that the beneficiary be assigned a priority date of December 28, 1992, which was the priority date given to the fourth-preference visa petition that had been filed on his behalf by his sister.
The director approved the second-preference visa petition on March 25, 2008, but she gave it a priority date of September 5, 2006, which is the date the visa petition was filed. In her decision, the director noted that 8 C.F.R. § 204.2(a)(4) (2008) allows for retention of a priority date solely with regard to derivative beneficiaries of a second-preference visa petition, not to derivative beneficiaries of a fourth-preference visa petition. As the 1992 visa petition was a fourth-preference petition, the director concluded that the second-preference petition filed by the petitioner in 2006 could not retain the more favorable priority date of the 1992 visa petition.
The director acknowledged the petitioner's argument that the beneficiary should be accorded the earlier priority date pursuant to the Child Status Protection Act, Pub. L. No. 107-208, 116 Stat. 927 (2002) ("CSPA"). However, she concluded that the CSPA did not apply to this case. In the absence of published precedent on the applicability of the CSPA in this situation, the director elected to certify her decision to the Board.
The issue in this case is whether a derivative beneficiary who has aged out of a fourth-preference visa petition may automatically convert her status to that of a beneficiary of a second-preference category pursuant to section 203(h) of the Act. To answer this question, we must examine whether the CSPA intended for the beneficiary of a second-preference visa petition filed by her father to retain the priority date previously accorded to her as the derivative beneficiary of a fourth-preference visa petition filed by her aunt.
Section 203(h) of the Act was amended by section 3 of the Child Status Protection Act, 116 Stat. at 928, in part to define who may qualify as a "child" and in part to address the "[t]reatment of certain unmarried sons and daughters seeking" immigrant status in the United States. Section 203(h) provides in pertinent part:
Rules for Determining Whether Certain Aliens Are Children
(1) In general
For purposes of subsections (a)(2)(A)2 and (d),3 a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1)4 shall be made using—
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
(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).5
(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)(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 CSPA was essentially enacted to provide relief to children who might "age out" of their beneficiary status because of administrative delays in visa processing or adjustment application adjudication. A "child" is defined for immigration purposes as an unmarried individual under the age of 21. Section 101(b)(1) of the Act. In certain visa categories, qualifying as a "child" has a definite advantage. For example, the child of a United States citizen is characterized as an "immediate relative," a category that is not subject to any statutory limit on the number of visas available each year. Thus, the "child" of a United States citizen does not need to wait for a priority date to become current, because a visa will be immediately available for a beneficiary in that category. Section 201(b)(2)(A)(i) of the Act, 8 U.S.C. § 1151(b)(2)(A)(i) (2006). However, should the child of a United States citizen reach the age of 21 before immigrating to the United States, he or she is then classified as a "son" or "daughter" of a United States citizen and falls within the purview of the first-preference category, which is subject to numerical limits and the attendant wait for a visa to become available. See section 203 of the Act (establishing the percentage of visas that may be allocated for various relative classifications). To illustrate, had this beneficiary been a child of a United States citizen today, she could immediately seek to immigrate as an immediate relative. However, as a Chinese national who is the unmarried daughter of a lawful permanent resident, she falls within the second-preference category, which is several years from being current.6
To protect a child's status from being lost on account of administrative processing delays, section 203(h)(1) of the Act provides a formula for determining whether a son or a daughter who, as in this case, is the derivative beneficiary of a visa petition may still qualify as a "child" when the parent's petition becomes current. The formula subtracts the amount of time it took Department of Homeland Security's United States Citizenship and Immigration Services ("USCIS") to adjudicate the visa petition (that is, the number of days from the date the visa petition was filed to the date the visa petition was approved) from the age of the derivative beneficiary on the date the visa petition became available. If the age of the derivative beneficiary as so calculated is under 21, then she may still be...
To continue reading
Request your trial