A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

Contact: 732-632-9888, help@szetolaw.com http://www.1visa1.com/

Showing posts with label Aged-out. Show all posts
Showing posts with label Aged-out. Show all posts

Friday, August 25, 2023

Aging-Out Children Given Additional Time to Obtain CSPA Benefits

 


USCIS recently implemented another policy change to accord additional time for aging-out children to submit their I-485 adjustment of application based on the Child Status Protection Act (CSPA).

CSPA or the "Child Status Protection Act" was a law passed by Congress in 2002 to alleviate the negative impact of long waiting times for U.S. immigrant visas.  If a child has reached the age of 21 when visa numbers become available for her immigrant visa category, she will normally not be allowed to immigrate as a “child”.  But if this person's CSPA age is under 21, then she may still be eligible to immigrate.  CSPA "freezes" the age of a child while his or her immigrant petition was pending for processing, thereby reducing her legal age for immigration purposes.  Hence, an otherwise over-aged child may be able to immigrate based on her CSPA age.

In order to benefit from CSPA, immigrant children must do something to acquire their immigrant status within one year after visa numbers become available for their particular visa category.   If they are in the United States, they can fulfil this "sought to acquire" requirement by submitting their I-485 application for adjustment of status within one year.  

The question arises as to when this one-year period starts.  Most immigrants know that visa numbers are controlled by the monthly Visa Bulletin published by the U.S. Department of State.  However, since there are two sets of dates in the Visa Bulletin, i.e., Final Action Dates and Filing Dates, there was confusion as to which set of dates should be used to determine when visa numbers are available for a particular case.

Remember the policy announced by USCIS in February of this year regarding the use of Filing Dates to calculate CSPA age?   The February policy change confirms that immigrants may use the Filing Dates to determine if visa numbers are available or current for their particular visa petition. Because of this change, some immigrants might have missed the one-year deadline to submit their I-485 applications.  As such, USCIS made another change in their Policy Manual to confirm that such a failure can be excused, by designating the February policy change as an “extraordinary circumstance” under the law.  As a result, applicants now have additional time to submit their adjustment applications based on CSPA.

Although this additional policy change issued by USCIS applies only to applicants filing for I-485 adjustment in the U.S., the rationale should also be applied to overseas petitions.  Overseas immigrants generally "seek to acquire" their immigrant status through the National Visa Center (NVC) processing. It involves submission of an immigrant visa petition, civil documents such as birth and marriage certificates, payment of fees, submission of Affidavits of Support, etc.  Applicants whose cases were rejected on account of this one-year "sought to acquire" requirement should request for a review based on this new USCIS policy.  

As a reminder, most immigration petitions are time-sensitive.  Readers are reminded to submit their immigration applications and petitions as soon as possible to avoid denial or loss of eligibility.


(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.) 


Thursday, July 16, 2020

Reopening of U.S. Consulates / Aging-out, H-4, L-2, J-2 Visas Exemption

Since the outbreak of the coronavirus in the US, it has become increasingly difficult for overseas applicants to apply for visas to enter the US.  Since March, the US embassies and consulates have been closed for business.  Then, President Trump issued two executive orders banning issuance of immigrant visas and also the H-1B, L-1 and J-1 visas from overseas.  It seems like the US has closed its doors to the world.  Recently, however, the Department of State (DOS) has made some announcements that are positive and encouraging to visa applicants. 

Gradual Resumption of U.S. Visa Services

First, DOS announced on July 14, 2020 that US Embassies and Consulates are beginning "a phased resumption of routine visa services."  It does not mean that all visa services will soon be resumed in all countries.  Instead, the reopening will occur on a "post-by-post basis," depending on local situation and health conditions.  All posts will continue to provide emergency and other mission-critical visa services.   Gradually, they will resume the routine visa services to the public.  

The State Department does not provide specific reopening dates for each Embassy and Consulate.  Instead, the public must check with their local U.S. Embassy or Consulate to obtain updated information.   It should be noted that President Trump's visa ban and travel restrictions are still in effect. Hence, resumption of visa services will only be limited to certain visa categories such as B-1 visitor visa, B-2 business visa, F-1 and M-1 student visa, etc., and other exempt categories such as spouses and children of US citizens.  However, due to the large number backlogged cases, one should expect longer waiting and processing times.



Exemption from Trump's Proclamation:  Aging-out Children and H-4, L-2 & J-2 Dependents
DV-2020 Applicants Excluded

The State Department also clarified on July 16, 2020, that the President's visa ban has certain exceptions.  In addition to humanitarian travel, public health response, and national security, children who are aging out may also request for exemption form the ban.  Specifically, if an immigrant visa applicant is going to age-out before or within two weeks of the expiration date of the visa ban, he or she may seek exemption.  

Further, if the H, L or J principal visa holder is exempt from the visa ban, their dependents are also exempt. So for example, if an H-1B principal is allowed to enter the US to perform a mission-critical assignment for the US government, her spouse and children will also be issued H-4 visas to enter.  

Importantly, dependents of H, L, J visa holders who are already present in the US will also be allowed to apply for dependent visas (H-4, L-2, and J-2) to enter.  This exception will allow many non-immigrant workers to be reunited with their family members. 

However, the State Department emphasized that Diversity Visa 2020 applicants are still subject to President Trump's visa ban, unless they had already been issued visas before the proclamation's effective date.  

Finally, DOS stated that valid visas will not be revoked on account of President Trump's proclamations.

Visa services are still very far from back to normal. However, these announcements represent a glimmer of light at the end of the tunnel. 




Monday, June 9, 2014

Supreme Court narrowly held that CSPA only applies when a new petition is not needed

Today, the Supreme Court issued a 5-to-4 decision in Scialabba v. Cuellar de Osario (formerly known as Mayorkas v. Cuellar de Osorio).  This decision held that the Child Status Protection Act (CSPA) only applies to retain the original priority date for those aged-out children who qualified or could have qualified as principal beneficiaries of an immigrant visa petition.  If they need a new petition (e.g., one filed by their parents) to fit into a new visa category, CSPA does not apply and they must stand in line again.  Please see our previous blogging for more details of this important issue.

Wednesday, November 13, 2013

Supreme Court to hear important Child Status Protection Act issue

On December 10, 2013, the United States Supreme Court will hear arguments on an extremely important issue regarding Section 3 of the Child Status Protection Act (CSPA).  The outcome of this case will determine which group of "aged out" children in immigrant visa petitions are allowed to keep the earlier priority date of the original visa petition and hence be able to obtain their U.S. green card faster. Back in 2009, I already predicted this issue would likely go up to the U.S. Supreme Court.

Background of the Case
Congress passed Child Status Protection Act in 2002 to provide relief to "aged-out" children in immigrant visa petitions.   Section 3 of the CSPA, codified as Section 203(h)(3) of the Immigration and National Act (INA), provides that "the [aged-out beneficiary's] petition shall automatically be converted to the appropriate category and the [beneficiary] shall retain the original priority date issued upon receipt of the original petition."  In Mayorkas v. De Osorio (Docket No., 12-930), the Supreme Court will decide whether Section 203(h)(3) applies to derivative beneficiary children in all visa petitions or just a subgroup of them.  Two examples will illustrate the importance of the case.

Example#1: Abel's father, a lawful permanent resident (LPR), filed an immigrant visa petition on behalf of Abel when he was under 21 under the Family 2A (F2A) preference category.  Due to visa backlog, Abel's case was pending for many years.  When his priority date finally became current, Abel was already over 21 and was no longer considered a "child" under the law.  However, Abel could still immigrate under the Family 2B (F2B) preference category as a son of a LPR over the age of 21.  There is no dispute that Section 203(h)(3) applies to automatically convert Abel's petition from F2A to F2B visa category, and that Abel is able to retain his initial priority date in the F2B petition. Consequently, Abel will be able to obtain his permanent residence status a lot faster than he otherwise would have.

Example#2: When Billy was 15 years old, his grandfather as a U.S. citizen filed an I-130 visa petition on behalf of Billy's father.  It was filed under the F3 preference category (married sons and daughters of USC) because Billy's father was married.  Billy was included in the visa petition as a derivative beneficiary child under the age of 21. Unfortunately visa numbers was not available until after Billy had already turned 21.  As a result, he was not able to immigrate with his father.  Upon becoming a LPR of the United States, Billy's father immediately filed an I-130 visa petition on behalf of billy pursuant to the F2B category.   If Section 203(h)(3) benefits are available to Billy, then he would be able to retain the priority date of his grandfather's petition from 10 years ago.  Otherwise, he would have to wait a lot longer.

The Issue of the Case
The main issue the U.S. Supreme Court will decide in Mayorkas v. De Osorio is whether Section 203(h)(3) of the INA (Section 3 of the CSPA) applies to all applicants who qualify as child derivative beneficiaries at the time a visa petition is filed but age out of qualification by the time the visa becomes current to the primary beneficiary.   The Government argues that Section 203(h) only applies to F2A direct beneficiaries (such as Abel in example#1 above) and derivative children beneficiaries while the Respondents argue that it should be applied to all derivative children beneficiaries including those in other preference categories (such as Billy in example#2 above).

The Statute at Issue
Section 3 of the Child Status Protection Act (CSPA), codified at Section 203(h) of the Immigration and Nationality Act (INA), provides:

(h) Rules for determining whether certain aliens are children
(1) In general
For purposes of subsections (a)(2)(A) and (d) of this section, a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 1101 (b)(1) of this title 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) of this section, 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) of this section, a petition filed under section 1154 of this title for classification of an alien child under subsection (a)(2)(A) of this section; or
(B) with respect to an alien child who is a derivative beneficiary under subsection (d) of this section, a petition filed under section 1154 of this title for classification of the alien’s parent under subsection (a), (b), or (c) of this section.
(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) of this section, 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.

Main Arguments in the Case
Because of the importance of this case, in addition to the Respondents in the case and the Government, many immigrant rights groups have also presented legal arguments as amici curiae.  The major arguments are summarized as follows:


1) Statutory interpretation:  Legal analysis usually starts with statutory interpretation, which is a process to find out exactly what a statute means.  It starts with the everyday plain meaning of the words in the statute. If the meaning is ambiguous, then the court usually defers to administrative agency's reasonable interpretation of the meaning.  Here the Board of Immigration Appeal (BIA) had interpreted Section 203(h) to benefit only F2A beneficiaries (See another blog post on Matter of Xiuyi WANG.)  Government agrees with the BIA interpretation that the term "automatically be converted" in Section 203(h) implies that no new petition or petitioner should be involved.  Since for conversion to occur, derivative beneficiaries in other preference categories such as F3 and F4 require a new petition to be filed by the principal beneficiary (parent) on behalf of the aged-out child, Government argues that Section 203(h)(3) does not apply to them. 

Respondents, on the other hand, argue that the language is not ambiguous (which is also the position of the Ninth Circuit Court of Appeals) and therefore the Court should not defer to the BIA interpretation. They also argue that "automatic conversion" does not necessarily occur when a beneficiary turns 21; instead it occurs when the subsequent F2B visa petition filed by her parent is adjudicated by USCIS.

2) Policy argument vs. legislative history:  CSPA was enacted to foster family unity, and therefore should be interpreted in the most generous manner -- this is probably the strongest argument of the Respondents and the immigrant rights advocates.  Government does not address this issue directly. Instead it focuses on the legislative history of CSPA and argues that nothing in the legislative history supports a broad reading of Section 203(h).

3) Fairness issue:  Respondents and immigrant rights groups argue that a narrow interpretation of Section 203(h)(3) does not make sense as it would confer less benefits to U.S. citizens than to lawful permanent residents.  Specifically, F1, F3 and F4 immigrant visa petitions are filed by U.S. citizens while F2 cases are filed by permanent residents. Therefore, Section 203(h) should be read to apply for all preference categories so as to confer the same rights to U.S. citizen petitioners.  On the other hand, Government argues that it would not be fair to the other F2B beneficiaries already waiting in line if individuals such as Billy above are allowed to "jump the line" in F2B. Further, Government also points out that it would also not be fair to the petitioning parents in the existing F2B cases who obtained their green cards before the aged-out children's parents at issue.

Conclusion
It would be difficult to predict with certainty how the U.S. Supreme Court will rule on this very important issue.  Whatever the decision is, it will have far-reaching effects on immigrant families for many years to come.   For the intending immigrants, it is extremely important for them to pay attention to the latest development of this critical Child Status Protection Act issue.