WANG

Cite as 25 I&N Dec. 28 (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, 116 Stat. 927 (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, 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).

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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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.

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, 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

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), 2006 WL 2183654, 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, 20 I&N Dec. 475 (BIA 1992), modified on other grounds, Matter

of Velarde, 23 I&N Dec. 253 (BIA 2002); Matter of Medrano, 20 I&N Dec. 216 (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 8 C.F.R. § 1003.1(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 8 C.F.R.

§ 204.2(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 8 C.F.R.

§ 204.2(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, 52 Fed. Reg. 33,797 (Sept. 8, 1987), 1987 WL

140984. 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 8 C.F.R.

§ 204.2(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 8 C.F.R. § 204.2(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 8 C.F.R. § 204.2(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, 23 I&N Dec. 56 (BIA 2001); Matter of Devison,

22 I&N Dec. 1362 (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 8 C.F.R. §§ 204.2(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,

2001 WL 406244, 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,

2001 WL 406244, at *2; see also 147 Cong. Rec. H2901 (daily ed. June 6,

2001) (statements of Reps. Sensenbrenner, Jackson-Lee, and Smith), 2001 WL

617985.

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), 2003 WL 131168, 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), 2002 WL 1610632, at *H4990-91;

see also H.R. Rep. 107-807, 2003 WL 131168, 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), 2002 WL

1610632, at *H4992; 147 Cong. Rec. H2901, 2001 WL 617985, 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), 2001 WL 617985, 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, 8 U.S.C. § 1255(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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