July 12, 2011


By David A. Isaacson

In its recent decision in Li v. Renaud, the U.S. Court of Appeals for the Second Circuit found that a derivative beneficiary of a family-based petition, whose adjusted age even under the Child Status Protection Act (“CSPA”) is above 21, cannot use section 203(h)(3) of the Immigration and Nationality Act (“INA”) to retain the priority date originally given to the principal beneficiary with respect to a petition in the 2B preference category by that principal beneficiary. That is, if your grandfather filed a petition for your father when you were 14 years old, and the petition took one year to process, but a visa number was not available for another 10 years, you cannot retain the family’s place in the priority-date waiting line now that you count as over 21 after subtracting the year that the petition was pending; instead, you will have to go to the back of the years-long waiting line for an immigrant visa number.

In so holding, the Second Circuit essentially approved the result reached by the Board of Immigration Appeals (“BIA”) in its Matter of Wang decision in 2009, although for somewhat different reasons. In the process, however, the Second Circuit appears to have overlooked the significance of its reasoning as applied to employment-based petitions, a subject which was deliberately left for another day but which I would argue sheds substantial light on why the Second Circuit’s decision in Li was incorrect.Additional background regarding the CSPA in general and Matter of Wang in particular can be found in an earlier article written by this author for our firm’s website. The section construed by Matter of Wang and Li v. Renaud, INA § 203(h), reads as follows:


(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 in paragraph (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)(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.

(4) APPLICATION TO SELF-PETITIONS- Paragraphs (1) through (3) shall apply to self-petitioners and derivatives of self-petitioners.

Enacted into the U.S. Code at 8 U.S.C. § 1153(h)(3), this section can be found online within 8 U.S.C. § 1153 .

In Matter of Wang, the BIA had overturned a previous unpublished decision called Matter of Maria T. Garcia, which did allow the aged-out child of a family preference petition beneficiary to retain the priority date that she previously had shared with her parent. The BIA found that the language of § 203(h)(3) was ambiguous, but that legislative intent showed § 203(h)(3) to codify an existing regulatory practice in which priority dates could be retained when the same petitioner filed a second petition for the same beneficiary. As the BIA explained, this practice was “limited to a lawful permanent resident’s son or daughter who was previously eligible as a derivative beneficiary under a second-preference spousal petition filed by that same lawful permanent resident.” Outside that context, the BIA found § 203(h)(3) inapplicable to derivative beneficiaries.
The Second Circuit in Li went a step further, holding that the statutory language was not even ambiguous, and that one need not resort to legislative intent to find that a priority date could not be retained “to use for a different family petition filed by a different petitioner.” Under circumstances such as the grandfather/child/grandchild fact pattern noted earlier (modeled on the facts of Li), the Second Circuit said, there is no “appropriate category” to convert to, because there is, for example, “no family preference category for grandchildren of LPRs”.

In footnote 1 of the Li opinion, at the urging of amicus curiae Mohammed Golam Azam, the Second Circuit made clear that they were leaving the issue of employment-based petitions for another day, and not determining how § 203(h)(3) applies to such petitions. The problem with this well-intentioned effort not to decide an issue unnecessarily is that it allowed the court to avert its eyes from the implications of the Liholding in the employment-based context, implications which I would argue suggest a problem with the entire holding.

As the reader will note from the quoted text of INA § 203(h) above, § 203(h)(2) specifically applies § 203(h) to derivative beneficiaries under § 203(d) not just of family-based petitions covered by § 203(a), but also of petitions in employment-based cases covered by § 203(b) and in diversity cases covered by § 203(c). Moreover, § 203(h)(3) specifically mentions subsection (d), pertaining to derivative beneficiaries, so we know that § 203(h)(2) doesn’t just apply to principal beneficiaries under § 203(a)(2)(A), children of Lawful Permanent Residents (“LPRs”) petitioned-for under the “2A” preference, who age out and must use the 2B preference for adult sons and daughters. Rather, the structure of § 203(h) read as a whole clearly indicates that the CSPA mechanisms apply to employment-based cases just as well as to family-based cases, and that priority-date retention applies to derivative beneficiaries just as much as to principal beneficiaries.

In the employment-based context, however, the reasoning of Li, if taken to its logical conclusion, suggests that § 203(h)(3) has no role to play at all. Being the child of the beneficiary of an employment-based petition will never qualify as a preference category in its own right, any more than being the grandson of a family petitioner is its own category does, and the derivative beneficiary will never (or almost never) be the direct beneficiary of a second petition by the same employer. Perhaps the Second Circuit in a later case will choose to shy away from this implication and prevent its precedent from going further down the wrong path, but that does appear to be the direction in which Li points it.

On the other hand, § 203(h)(3) does have work to do in the context of § 203(b) petitions if we adopt the interpretation that Li and Matter of Wang rejected, the one previously offered by the BIA in Matter of Maria T. Garcia: that the appropriate category for an aged-out derivative under § 203(d) is the 2B category, under INA § 203(a)(2)(B), with respect to the original beneficiary. This interpretation allows the derivative beneficiary to continue in essentially the same relation to the principal beneficiary that has existed all along, modified for the aging-out. It should not come as a surprise that the process allowed by this interpretation requires awaiting the LPR status of the principal beneficiary, because the defining characteristic of derivative beneficiaries under § 203(d) is always their entitlement to “the same order of consideration . . . if accompanying or following to join[] the spouse or parent”—to quote directly from the text of § 203(d) as enacted at 8 U.S.C. § 1153. By definition, one cannot accompany or follow to join a parent who has not yet become an LPR, whether or not the CSPA is involved.

The irrelevance of § 203(h)(3) with regard to § 203(b) derivatives caused by the interpretation in Li is a contextual clue in the statute that this interpretation is incorrect. Interpretations which render part of a statute superfluous are, and should be, disfavored. According to the logic of Li, it appears that even though § 203(h)(2)(B) mentions family-based petitions under § 203(a) and employment-based petitions under § 203(b) in precise parallel as contexts in which the entirety of § 203(h) should apply to derivative beneficiaries under § 203(d), and even though § 203(d) is specifically cited in § 203(h)(3) as a context in which that particular subsection applies, § 203(h)(3) may not apply at all to § 203(d) derivative beneficiaries of § 203(b) employment-based petitions. Whether or not one agrees with the BIA’s policy decision in Matter of Wang (which this author finds overly harsh) as applied to a statute thought by the BIA to be ambiguous, it certainly seems excessive given this clue to read the statute as unambiguously mandating such a result. And yet that is what the Second Circuit did in Li.

There is a famous saying, often attributed to Thomas Jefferson, that you should never put off until tomorrow what you can do today. Courts are often properly reluctant to follow this maxim, because it is a principal of judicial decision-making in our system of law that a court should not reach out to decide questions unnecessarily. But when a court too cavalierly puts off until tomorrow a question which is actually important to the resolution of the issue it is deciding, it may come to an incorrect result. It appears that this may be what occurred in Li.

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