WANG

Cite as 

 (BIA 2009)                                   Interim Decision #3646




          Matter of Xiuyi WANG, Beneficiary of visa petition
                  filed by Zhuomin Wang, Petitioner
                  File A088 484 947 - California Service Center

                                Decided June 16, 2009

                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals


  The automatic conversion and priority date retention provisions of the Child Status
Protection Act, Pub L. No. 107-208, 

 (2002), do not apply to an alien who ages
out of eligibility for an immigrant visa as the derivative beneficiary of a fourth-preference
visa petition, and on whose behalf a second-preference petition is later filed by a different
petitioner.

FOR RESPONDENT: Scott Bratton, Esquire, Cleveland, Ohio

AMICI CURIAE:1 Robert L. Reeves, Esquire; Nancy Miller, Esquire; and Jeremiah
Johnson, Esquire, Pasadena, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Jason R. Grimm, Service
Center Counsel

BEFORE: Board Panel: NEAL, Acting Chairman; ADKINS-BLANCH, Board Member;
and MANN, Temporary Board Member.

MANN, Temporary Board Member:


   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

1
  We acknowledge with appreciation the helpful briefs submitted by both parties and
by amici curiae.

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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.

             I. FACTUAL AND PROCEDURAL HISTORY

                             A. 1992 Visa Petition

   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, 

(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, 

(b), 1153(d) (2006).

                             B. 2006 Visa Petition

    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


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(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, 

 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.

                                        II. ISSUE

   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.

                   III. CHILD STATUS PROTECTION ACT

                          A. Who May Qualify as a “Child”?

   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)




2
    This provision relates to the spouses or children of lawful permanent residents.
3
    This provision relates to a spouse or child, if accompanying to join the spouse or parent.

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     of section 101(b)(1)4 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).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, 

(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


4
   This matter notes that the term “child” means an unmarried person under 21.
5
  Section 203(a) refers to familial visas, (b) refers to employment based visas, and (c) refers
to diversity visas.

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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 considered a “child,” and she
may be eligible to adjust her status or immigrate to the United States based
on a visa petition filed on behalf of her parent.
   The parties in this case agree that the beneficiary could not be considered
a “child” under section 203(h)(1) of the Act, because at the time the 1992 visa
petition became current, she was not under 21, even subtracting the number
of days that the visa petition was pending approval, which was less than
2 months’ time. The beneficiary had already aged out when the 1992 visa
petition became current, and she was thus not eligible to immigrate with her
father in 2005.

                               B. “One-Year” Bar

   The issue then turns on whether the petitioner may use section 203(h)(3)
of the Act to convert the priority date from his sister’s fourth-preference visa
petition to an unrelated second-preference visa petition for his daughter.
As noted above, section 203(h)(1) provides a calculation that determines the
age of an alien on the date an immigrant visa number becomes available, “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.” Section
203(h)(1)(A) of the Act.
   As an initial matter, the USCIS argues that the beneficiary may not take
advantage of the age calculation provision in section 203(h)(1) of the Act
to utilize the priority date retention provision in section 203(h)(3), because she

6
  The most recent priority date for this nationality and category is February 1, 2001.
Department of State Visa Bulletin, Vol. IX, No. 9 (June 2009).

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admittedly did not file an application for lawful permanent resident status
within 1 year of visa availability. Conversely, the petitioner asserts that the
requirement in section 203(h)(1) that an alien must seek permanent resident
status within 1 year of the visa’s availability is inapplicable to his daughter.
According to the petitioner, sections 203(h)(1) and (3) of the Act are distinct
from each other and provide different benefits.7
   The record before us contains no evidence that the beneficiary sought
to acquire lawful permanent resident status under the 1992 visa petition within
a year of the visa petition becoming available, that is, by February 2006.
However, we need not address the question whether this bars the beneficiary
from using the terms of section 203(h)(3) of the Act, as we have alternatively
examined whether section 203(h)(3) permits an automatic conversion from
a fourth-preference visa petition to a second-preference visa petition with
retention of the priority date of the fourth-preference petition, and we resolve
the matter on that basis.

     IV. AUTOMATIC CONVERSION AND PRIORITY DATE
           RETENTION UNDER SECTION 203(h)(3)
                     OF THE ACT

                                 A. Statutory language

   If the beneficiary is determined to be 21 years of age or older pursuant
to section 203(h)(1) of the Act, then section 203(h)(3) provides that “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.” Unlike sections 203(h)(1) and (2), which when read in tandem
clearly define the universe of petitions that qualify for the “delayed processing
formula,” the language of section 203(h)(3) does not expressly state which
petitions qualify for automatic conversion and retention of priority dates. Given
this ambiguity, we must look to the legislative intent behind section 203(h)(3).

7
   The petitioner cites our unpublished decision in Matter of Garcia, A79 001 587 (BIA
June 16, 2006), 

, in which we found that section 203(h)(3) allowed the
alien to use the priority date granted to her as a derivative beneficiary of her mother’s visa
petition. As a rule, unpublished decisions are not authority, and we are not bound by them.
Matter of Arthur, 

 (BIA 1992), modified on other grounds, Matter
of Velarde, 

 (BIA 2002); Matter of Medrano, 

 (BIA 1990,
1991). Nevertheless, we observe that the decision in Garcia discussed neither the
requirement that an alien must seek to acquire lawful permanent resident status within 1 year
of visa availability nor the legislative framework of the statute. We therefore decline
to adopt the reasoning in Garcia. See 

(g) (2009).

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   The petitioner urges a broad interpretation of section 203(h), contending that
section 203(h)(3) is available to all derivative beneficiaries of any visa petition
classification. The brief offered by amici curiae similarly maintains that section
203(h) of the Act is ameliorative and inclusive and does not limit its automatic
conversion and priority date retention provisions to family-based preference
petitions. In contrast, the USCIS urges a much narrower interpretation of the
CSPA, arguing that section 203(h)(3) mirrors the language of 

(a)(4) and essentially codifies “established regulatory practice,” which
requires that the original priority date will be retained only if the second visa
petition is filed by the same petitioner. Thus, the USCIS maintains that in order
to effect an “automatic conversion” under the CSPA, the petitioner also must
have been the petitioner on the 1992 visa petition. According to the USCIS,
such an interpretation of the statute avoids open-ended petitions with
no timeliness considerations. We begin with an examination of the regulatory
and statutory context in which Congress enacted the automatic conversion and
priority date retention provisions of section 203(h)(3).

             B. Use of Visa Petition Conversion and Priority Date
                             Retention Language

   In immigration regulations, the phrase “automatic conversion” has
a recognized meaning. For example, the relevant provisions of 

(i), which have been in effect since 1987, provide for the “automatic
conversion of preference classification” from one preference category
to another upon the occurrence of certain events. See Automatic Conversion
of Classification of Beneficiary, 

 (Sept. 8, 1987), 

. Such events include changes in the beneficiary’s marital status or the
naturalization of the petitioner. Thus, a second-preference petition filed
on behalf of the son or daughter of a petitioner who naturalizes would
automatically convert to a first-preference petition, and the newly converted
petition would retain the original priority date.
   Similarly, at the time Congress enacted the CSPA, the regulations at 

(a)(4) provided for “retention” of a priority date for an aged-out
child who was accompanying or following to join a principal beneficiary
on a second-preference spousal petition. Under 

(a)(4),
if a child ages out prior to the issuance of a visa to the principal beneficiary,
a separate petition for that son or daughter is then required, but the original
priority date is retained if the subsequent petition is filed by the same petitioner.
In other words, the retention provision of 

(a)(4) is limited
to a lawful permanent resident’s son or daughter who was previously eligible



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as a derivative beneficiary under a second-preference spousal petition filed
by that same lawful permanent resident.
    In another context, the CSPA added section 201(f) to the Act, which sets
forth rules for determining whether certain aliens qualify as immediate
relatives. That section treated the terms “automatic conversion” and “retention”
consistently with the existing regulatory schema.8 Section 201(f) expressly
authorizes automatic conversions of petitions upon the naturalization
of an alien’s parent or the termination of a beneficiary’s marriage. In such
situations, neither the beneficiary nor an immigration officer need take any
action to effect the conversion to the new preference category, because the
“conversion” of the originally filed petition based on one preference category
to another preference category occurs automatically by operation of law.9
    As illustrated above, the term “conversion” has consistently been used
to mean that a visa petition converts from one visa category to another, and the
beneficiary of that petition then falls within a new classification without the
need to file a new visa petition. Similarly, the concept of “retention” of priority
dates has always been limited to visa petitions filed by the same family
member. A visa petition filed by another family member receives its own
priority date. We therefore presume that Congress enacted the language
in section 203(h)(3) with an understanding of the past usage of these regulatory
terms. See Matter of Monreal, 

 (BIA 2001); Matter of Devison,

 (BIA 2000, 2001).
    With this understanding of how the automatic conversion and priority date
retention processes have operated historically, we turn to this case to determine
how section 203(h)(3) would apply to the beneficiary. First, with regard to the
“automatic conversion” referenced in section 203(h)(3), we look to see
to which category the fourth-preference petition converted at the moment the
beneficiary aged out. When the beneficiary aged out from her status
as a derivative beneficiary on a fourth-preference petition, there was no other
category to which her visa could convert because no category exists for the

8
  In fact, section 2 of the CSPA, 116 Stat. at 927-28, which added section 201(f) to the Act,
specifically referenced the preexisting regulatory automatic conversion provisions
of 

(i)(1) and (3).
9
  By way of further example, section 6 of the CSPA, 116 Stat. at 929, added section 204(k)
to the Act to create a new automatic conversion category, wherein a petition filed on behalf
of an unmarried son or daughter of a lawful permanent resident who subsequently
naturalizes will automatically convert to a petition to classify the alien as the son or daughter
of a United States citizen. The “automatic” nature of this transaction is emphasized by the
need for aliens to affirmatively opt out of the conversion if they do not wish to move into
the new preference category (for example, should the new category provide a less
advantageous priority date). See section 204(k)(2) of the Act.

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niece of a United States citizen. Second, if we apply the “retention” language
of section 203(h) here, we look to see if the new petition was filed on the
beneficiary’s behalf by the same petitioner. In the beneficiary’s case, the new
visa petition has been filed by her father, not by her aunt (who was the original
petitioner). As noted above, her aunt is not eligible to file a new petition for her
because no category exists for the niece of a United States citizen under our
existing visa preference classification system.
    The petitioner disregards the context explained above and instead maintains
that the CSPA is intended as an ameliorative provision to keep families together
and that the beneficiary in one visa preference category should be able to retain
the priority date for all derivative beneficiaries who may age out. His argument
suggests that any time a son or daughter who is a derivative beneficiary
of a visa petition filed on behalf of the parent alien is calculated to be 21 years
of age or older pursuant to section 203(h)(1)of the Act, that derivative visa
petition automatically converts to a new visa petition that may be filed in the
future when the alien parent becomes eligible to file the new visa petition.
Thus, by this argument, as long as a parent gains status under any preference
category, all children who were derivative beneficiaries would gain favorable
priority date status, even with regard to a new visa petition that is wholly
independent of the original petition and that may be filed without any time
limitation in the future. In other words, a derivative beneficiary would never
age out or lose a previous priority date. However, we find no clear indication
in the statute that Congress intended to expand the historical categories eligible
for automatic conversion and priority date retention in such a fashion.
We therefore search the legislative history of the CSPA for evidence of a clear
intent by Congress to expand the use of the concepts of automatic conversion
and priority date retention, as advocated by the petitioner.

                                C. Legislative History

    In the House Report accompanying H.R. 1209, 107th Cong. (2001), initially
entitled the “Child Status Protection Act of 2001,” the Committee on the
Judiciary identified the purpose of the bill as modifying
      provisions of the Immigration and Nationality Act determining whether an alien
      is considered a child and eligible for permanent resident status as an immediate
      relative of a U.S. citizen, principally by providing that the alien’s status as a child
      is determined as of the date on which the petition to classify the alien as an immediate
      relative is filed.

H.R. Rep. No. 107-45, at 1-2 (2001), reprinted in 2002 U.S.C.C.A.N. 640, 640,

, at *1-2. Both the report and associated statements from

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several members of the House of Representatives emphasize that the drive for
the legislation was the then-extensive administrative delays in the processing
of visa petitions and applications resulting in the aging out of beneficiaries
of petitions filed by United States citizens and the associated loss of child status
for immigration purposes. Id. at 2, reprinted in 2002 U.S.C.C.A.N. 640, 641,

, at *2; see also 147 Cong. Rec. H2901 (daily ed. June 6,
2001) (statements of Reps. Sensenbrenner, Jackson-Lee, and Smith), 

.
    The legislature subsequently reported changes to the proposed CSPA,
regarding retention of child status for immediate relatives and adding section
203(h) of the Act in its current form. CSPA, § 3, 116 Stat. at 928. A report
on the activities of the Committee on the Judiciary summarized the CSPA,
noting that the statute applied when a child of a United States citizen ages out,
when lawful permanent resident parents naturalize after petitioning for their
sons and daughters, and when United States citizen parents petition for their
married sons and daughters whose marriages are later terminated, and
it applied as well to children of lawful permanent residents, family- and
employer-sponsored immigrants, and diversity lottery winners. H.R. Rep. No.
107-807 (2003), 

, at *55-56.
    While the legislative record contains generalized references to the Senate
amendment regarding children of family- and employment-based visas and
diversity visas, there is little discussion explaining the nature of those changes.
However, the Chairman of the Committee on the Judiciary did note,
in referencing those amendments, that the Senate bill addresses other situations
where alien children lose immigration benefits by aging out as a result
of processing delays. He noted the same included children of lawful permanent
residents, family- and employer-sponsored immigrants, diversity lottery
winners, and asylees and refugees. 148 Cong. Rec. H4989 (daily ed. July 22,
2002) (statement of Rep. Sensenbrenner), 

, at *H4990-91;
see also H.R. Rep. 107-807, 

, at *55-56.
    There was repeated discussion in the House, both before and after the
Senate amendment, of the intention to allow for retention of child status
“without displacing others who have been waiting patiently in other visa
categories.” 148 Cong. Rec. H4989 (statement of Rep. Jackson-Lee), 

, at *H4992; 147 Cong. Rec. H2901, 

, at *H2902.10


10
    Representative Sheila Jackson-Lee reported that the bill contained newly added
compromise language to reflect the legislature’s desire that the bill not displace others
already awaiting visas in other preference categories. Indeed, it was expected that this
legislation would open up more immigrant visas in the preference categories because more
                                                                          (continued...)

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The historical record regarding the CSPA contains nothing that is contrary to,
or reflects any disagreement with, the noted intent of legislators to have the
CSPA address the issue of children aging out of visa availability as a result
of administrative processing delays, without cutting in line ahead of others
awaiting visas in other preference categories. While the CSPA was enacted
to alleviate the consequences of administrative delays, there is no clear
evidence that it was intended to address delays resulting from visa allocation
issues, such as the long wait associated with priority dates. If we interpret
section 203(h) as the petitioner advocates, the beneficiary, as a new entrant
in the second-preference visa category line, would displace other aliens who
have already been in that line for years before her. Although her visa petition
was filed in 2006, the beneficiary would “jump” to the front of the line
by retaining a 1992 priority date, thereby causing all the individuals behind her
to fall further behind in the queue.11
     We recognize the petitioner’s concern that the length of the visa queue
in certain categories can result in children aging out of visa eligibility and
losing the opportunity to immigrate with other family members. However, this
delay is not a consequence of administrative delays by the Government. Rather,
it is the result of a high demand for a finite number of visas. We find that while
the legislative record demonstrates a clear concern on the part of Congress
to ameliorate the delays associated with the processing of visa petitions, there
is no indication in the statutory language or legislative history of the CSPA that
Congress intended to create a mechanism to avoid the natural consequence
of a child aging out of a visa category because of the length of the visa line.
We find no indication in the legislative record that Congress was attempting
to expand on the historical application of automatic conversion and retention
of priority dates for visa petitions, and we therefore decline to read such
an expansion into the statute.




(...continued)
individuals would be eligible for visas as immediate relatives and fewer would be shifted
to the limited, family-based preference categories. 147 Cong. Rec. H2901 (statement
of Rep. Jackson-Lee), 

, at *H2902.
11
     The petitioner’s argument is rather similar in nature to one seeking
to “grandfather” a priority date. However, Congress did not write the statute in such
a manner, although it clearly has the capability of doing so. See section 245(i) of the
Act, 

(i) (2006).


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                              V. CONCLUSION

    When the beneficiary turned 21 years of age before the fourth-preference
visa petition became current, she no longer qualified as a “child” under section
203(h)(1) of the Act. Further, the automatic conversion and priority date
retention provisions of section 203(h)(3) do not apply to the beneficiary,
as those concepts are used historically in Federal regulations and codified
elsewhere in the CSPA. First, there was no available category to which the
beneficiary’s petition could convert because no category exists for the niece
of a United States citizen. Moreover, the second-preference petition filed
on behalf of the beneficiary cannot retain the priority date from the
fourth-preference petition filed by her aunt because the second-petition has
been filed by her father, a new petitioner.
    Absent clear legislative intent to create an open-ended grandfathering
of priority dates that allow derivative beneficiaries to retain an earlier priority
date set in the context of a different relationship, to be used at any time, which
we do not find in the history of the CSPA, we decline to apply the automatic
conversion and priority date retention provisions of section 203(h) beyond their
current bounds. Accordingly, we will affirm the decision of the director that
the priority date to be assigned to the petitioner’s visa petition on behalf of his
daughter is September 5, 2006, the date the visa petition was filed.
    ORDER: The decision of the director is affirmed.




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