Nearly three years ago Reeves & Associates published an article, regarding “Relief for AgeOut Children under Child Status Protection Act (“CSPA”),” discussing the scenario where children who “aged-out” retain their parent’s original priority date. Since then, Reeves & Associates has been a leader in establishing CSPA relief for families with aged-out children. Reeves & Associates has represented more than 100 aged-out children many of whom have been approved for permanent residency.
Some applications, however, were denied and other applications were left unanswered by the United States Citizenship and Immigration Services (“USCIS”). Because of inconsistent decisions, Reeves & Associates filed a class action lawsuit on behalf of immigrant families, Costello v. Chertoff, in U.S. District Court challenging the USCIS’ failure to comply with certain provisions of the CSPA. On July 16, 2009, U.S. District Court Judge James V. Selna issued a 21 page decision granting Reeves & Associates’ motion to certify the lawsuit as a class-action and appointing Reeves & Associates as class counsel. Given USCIS’s strong opposition to Reeves & Associates’ motion for class certification, this recent development in the ongoing fight against USCIS’s unreasonable interpretation of the law is a significant step for immigrants trying to reunite with their families.
Congress passed the CSPA on August 6, 2002 to protect the children of immigrants who turn twenty-one years old (“age-out”) while their parents waited for immigrant visas. Under the better-known section of CSPA, the child may use a complex formula that allows for the amount of time an immigrant visa was processing to be subtracted from the child’s age on the date the green card application was filed. However, many children still aged-out despite the formula and families suffered as a result of separation from loved ones.
Although under Section 203(a)(2)(B) of the Immigration and nationality Act (“INA”), a permanent resident parent has the right to petition his unmarried adult children, the child’s priority date would then be the date the immigrant visa petition was filed. Because of the limited number of visas and the backlog, the child would have to give up his or her place in line and wait several more years to be reunited with his or her family. Fortunately, Congress provided relief for these families. Under the Section 3 of CSPA, codified at INA § 203(h)(3), children who age-out - even after applying the formula - can convert to the appropriate immigrant category and retain the priority date under which the parent immigrated.
Specifically, INA § 203(h)(3) states that “the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date upon receipt of the original petition.” So under this provision of the law, a child who aged-out retains the original priority date and in most cases can reunite with their family.
Moreover, if the child who aged-out is in the United States, he or she should be able to apply for a green card if otherwise eligible. In short, an aged-out child, who is a derivative beneficiary of the visa petition of his parent, will be able to keep his or her place in the immigration line and reunite with their family much faster by utilizing their parent’s earlier priority date.
Unfortunately, USCIS has failed to comply with INA § 203(h)(3). Moreover, USCIS has also failed to promulgate federal regulations or issue policy memorandum regarding this provision of law leaving adjudicators with little guidance. This failure resulted in decisions that were arbitrary and inconsistent.
For example, the Board of Immigration Appeals has issued one case permitting the retention of the original priority date (Matter of Garcia) and another denying the retention (Matter of Wang). Similarly, USCIS has recognized the retention in some cases and refused to recognize it in others. In some cases, these inconsistencies affected children in the same family, as is the case with Teresita Costello. One of her daughters was allowed to keep the original priority date and her other daughter was not.
In other cases, USCIS has simply ignored the request to retain the original priority date. Before the Court, USCIS took the position that these children should give up their established place in line, go to the back of the line and wait another ten years to be reunited with their families. The Government’s position was simply unacceptable and waiting for USCIS to correctly interpret the law can sometimes prove a waste of time. As such, Reeves & Associates filed a motion to certify the lawsuit as a class action on behalf of all affected immigrants and their families.
The lawsuit seeks to compel USCIS to properly adjudicate all cases filed under Section 3 of CSPA and comply with the requirements of retaining the parent’s original priority date in subsequent petitions filed by the parent as required under INA § 203(h)(3).
Reeves & Associates is not only committed to protecting the rights of their clients, but also to fighting for all immigrants who have been harmed by the Government’s failure to follow the law.
Author's Note: The analysis and suggestions offered in this column do not create a lawyer-client relationship and are not a substitute for the individual legal research and personalized representation that is essential to every case.
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