Addressing the finer points of the Child Status Protection Act (Pt 3) ALLEN E. KAYE and NELSON A. MADRID Attorneys at Law Pollack, Pollack, Isaac & DeCicco, LLP.
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A42 India Abroad May 22, 2015
The final piece by Mary Kenney, staff attorney at the American Immigration Council on CSPA, the law protecting those who lose the immigration status once they turn 21. In Matter of Wang, the BIA narrowly interpreted the provi- sion that if the age of a beneficiary is determined to be 21 years or older for purposes of INA §§203(a)(2)(A) (visa classifica- tion for children of LPRs) or 203(d) (derivative beneficiaries of family, employment and diversity visa petitions)by holding that the priority date retention and automatic conversion ben- efits do not apply to a derivative beneficiary of a 4th prefer- ence family-based visa petition. Instead, the BIA found that this section only would apply to visa petitions filed by an LPR parent for a child as either a direct or derivative beneficiary. Matter of Wang was challenged in several federal court cases, including a case that eventually reached the Supreme Court. In Scialabba v Cuellar de Osorio, a plurality of the Court upheld the BIA’s interpretation of INA § 203(h)(3). Five Supreme Court Justices agreed that §203(h)(3) was ambigu- ous — although there was some disagreement amongst them as to the nature of this ambiguity—and that Matter of Wang was a reasonable interpretation of this ambiguous provision. As a consequence, the alternative benefit for aged-out ben- eficiaries found in §203(h)(3) applies only to visa petitions filed by an LPR parent for a child as either a direct or deriva- tive beneficiary; that is, it only will apply to those in the family 2A preference category. Aged-out derivative beneficiaries in other family-based categories, as well as of of employment- based petitions and of diversity visa applications will not ben- efit from this provision. Conversion from second to first preference opt-out provision The CSPA addresses what happens to a visa petition for an un- married son or daughter of an LPR when the parent natural- izes. It provides that a family-based visa petition filed by an LPR on behalf of an unmarried son or daughter (who is over 21) will automatically convert to a family 1st preference peti- tion if the LPR naturalizes while the petition is still pending. If the beneficiary was assigned a priority date prior to the con- version of the petition, he or she will maintain that priority date after the conversion. This provision also allows the beneficiary to elect not to have the petition converted, or, if converted, to have the conversion revoked. The case continues as if the parent had not natural- ized. This option will primarily benefit Filipinos for who the backlog for the first preference category is greater than for the Family 2B preference category. USCIS will allow a beneficiary to ‘opt out,’ regardless of whether the petition was initially filed in the 2B preference category or filed in the 2A preference category and later con- verted to the 2B category because the child has aged out. USCIS reads the statutory language ‘initially filed’ to mean that the petition was initially filed for a beneficiary who is now in the 2B unmarried son or daughter classification, re- gardless of whether the petition was originally filed in the 2A category. Individuals who wish to opt out may do so by filing a request in writing with the USCIS District Office that has jurisdiction over the beneficiary’s residence. USCIS also takes the position that it is the beneficiary’s bio- logical age at the time of naturalization that is ‘locked in’ or ‘fixed,’ and not the beneficiary’s CSPA adjusted age.60 The BIA agrees. Setting a precedent, the BIA held that, the fact that the beneficiary was over 21 at the time his mother naturalized meant that the 2A family-based petition that she had filed on his behalf automatically con- verted to the 1st family pref- erence, as he was now the son of a US citizen.61 The BIA found that the age-determi- nation formula of the CSPA— found at INA §203(h)(1) — was irrelevant once the mother had naturalized. In the same decision, the BIA also ruled the son could not opt out of the 1st prefer- ence to remain in the family 2A preference category, find- ing that INA §204(k)(2) re- stricted this alternative to opting out of the 1st prefer-
ence to only the family 2B preference category. It is very im- portant to counsel clients about the possible adverse impact that a parent’s naturalization could have on the application of a beneficiary child. Does CSPA apply retroactively? The CSPA, effective August 6, 2002, applies to all who turn 21 after this date, provided other CSPA requirements are met. The statute has an effective date provision (section 8) which governs how the statute is to be applied to cases in which some relevant event occurred before August 6, 2002, the date the CSPA was adopted, but other events took place after this date. USCIS has interpreted this provision as applying the CSPA to three sets of cases: Cases in which the visa petition was approved prior to Au- gust 6, 2002, but a final determination has not been made on a beneficiary’s application for an immigrant visa or adjust- ment of status pursuant to the approved petition; Cases in which the visa petition is pending on or after August 6, 2002; and Cases in which the application for an immigrant visa or ad- justment of status is pending on or after August 6, 2002. (Both USCIS and DOS agree the statute applies to a child who ages out after August 6, 2002. In determining whether a child aged out before or after this date, it is important to remember the 45-day extension contained in the USA PATRIOT Act. See sec- tion 3, supra). USCIS had interpreted the statutory term ‘final determina- tion’ (as used in CSPA §8(1)) to mean agency approval or de- nial issued by USCIS or EOIR. In contrast, the Ninth Circuit in Padash v INS, rejected the interpretation of a ‘final deter- mination’ as limited to an agency determination, and found there was no final determination of an adjustment application when an appeal of the agency’s denial of the application was pending in federal court. The BIA also has resolved an issue relating to the meaning of CSPA § (8)(1). In Matter of Avila-Perez, the BIA held that the CSPA applied where a visa petition for an immediate rel- ative was approved prior to August 6, 2002, but no adjustment application was pending on that date. Instead, the adjustment application was filed subsequently. Over a year later, USCIS issued a new memorandum that, inter alia, implements the holding of Matter of Avila- Perez. This memo reverses USCIS’s earlier position that had required an application for permanent residence to be pend- ing on August 6, 2002. It also attempts to remedy the situation for those wrongly denied or discouraged from filing under the old policy. First, it allows a beneficiary of a visa petition approved prior to August 6, 2002 to file a motion to reopen his or her adjust- ment application where that application had been denied under the prior policy because it was filed after August 6, 2002, provided the beneficiary meets all other requirements for CSPA coverage. Second, the memorandum provides for those who did not apply for adjustment of status but who would have been eligi- ble but for the erroneous agency policy. It allows a beneficiary whose visa became available on or after August 7, 2001 (a year prior to the statute’s adoption date), to apply for adjustment, even though this adjustment application would not be filed within a year of the visa availability date. On June 15, 2009, USCIS issued guidance on this memo- randum in the form of a ‘Questions and Answers’ fact sheet. This fact sheet does not offer any new interpretation but in- stead attempts to explain the April 30, 2008, memorandum. In 2011, the Seventh Circuit issued a decision confirming an interpretation of the statute as applying to cases in which the adjustment application had been filed prior to 2002 but no final decision had been issued as of the date that the CSPA was adopted.
Allen E Kaye, a Phi Beta Kappa graduate of Queens College of the City of New York, Columbia Law School (JD) and New York University Law School (LLM), is the President of the Law Offices of Allen E. Kaye and Associates and Of Counsel to Pollack, Pollack, Isaac and DeCicco. He is a past national president of the American Immigration Lawyers Association and co-chair of the Immigra- tion Committee of the Queens County Bar Association. He has been selected by Martindale-Hubbell as a 2014 ‘Top Rated Lawyer’ in the practice of Labor and Employment (for Immigration). Questions for publication may be sent to Kaye at 225 Broadway, Suite 307, New York, NY 10007 or by e-mail at AllenEKaye5858@gmail.com
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