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Supreme Court to Rule on CSPA Priority Date Retention

The U.S. Supreme Court heard oral arguments in the case of Mayorkas v. De Osorio last December 10. The Court’s decision is expected by June 2014 and will have far-reaching implications to derivative beneficiaries of family-based preference petitions.

Under immigration law, parents who are the principal beneficiaries of a family based preference petition can include their unmarried children under 21 as derivative beneficiaries. Family based preference petitions fall under four categories, namely, F1 (unmarried sons and daughters of U.S. citizens), F2A (spouses and minor children of lawful permanent residents (LPRs), F2B (unmarried sons and daughters of LPRs), F3 (married sons and daughters of U.S. citizens) and F4 (brothers and sisters of U.S. citizens).

There is a waiting period for a visa to become available because of the problem on visa backlog. The waiting period differs depending on the category and the country of chargeability; it can be decades for some countries such as Mexico and the Philippines. For example, the F4 category for the Philippines has a current priority date of July 1, 1990. Once a visa becomes available, the child who turns 21 years old “age-out” and can no longer join the parents as derivative beneficiaries. The Child Status Protection Act (CSPA) was enacted in 2002 to address this problem.

Under the CSPA, when a visa number becomes available, the amount of time the petition was pending before the USCIS is deducted from the child’s actual age. If the adjusted age of the child is under 21, the child may join the parents as derivative beneficiary. If not, the 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.”

This way the aged-out children won’t have to go to the back of the line for a new family-based preference category. They will be credited for the lengthy period they already waited with their parents.

The case of Mayorkas v. De Osorio involves Cuellar de Osorio who was the primary beneficiary of an F3 petition of her U.S. citizen mother. Her son was thirteen years old when the petition was filed in May 1998. When a visa became available in November 2005, her son aged out and became ineligible for an immigrant visa. She filed for an F2B petition for her son in 2006 and requested that her son’s 1998 priority be retained. The USCIS denied her request.

She appealed to the Ninth District Court which decided the case in her favor. The court ruled that the CSPA provides for the automatic conversion of the petition and priority date retention of all derivative beneficiaries of family based preference petitions. The Government appealed the decision to the U.S. Supreme Court.

The Government contends that the language of the CSPA law is ambiguous and the decision of the Board of Immigration Appeals (BIA) in Matter of Wang 2009 should be given deference by the court. In that case, the BIA ruled that the automatic conversion of the petition to F2B and the retention of the priority date only applies to F2A petitions.

A bipartisan coalition of current and former U.S. Senators filed a legal brief with the Supreme Court last November 4 and explained that the language of the CSPA is clear; it benefits all derivative beneficiaries of family based preference petitions. It further stated that “Only through the broad coverage of all derivative beneficiaries could the CSPA effectively protect family unity and award credit for the years that families had waited.” It went on to conclude that “Congress has enacted a law that is clear on its face; the agency must act to faithfully carry it out.”

Once the Supreme Court resolves this case, it will finally put an end to the long-standing legal saga involving the CSPA provision allowing age-out children to retain their original priority dates.

Immigration Reform Is Top Priority in 2014

The House of Representatives wrapped up its affairs for 2013 without passing an immigration reform bill. This despite the continued and intensified protests of immigration advocates to pressure the House to vote on an immigration bill before it closed its 2013 legislative calendar.

More than 1,000 advocates showed up at the House last December 12 and occupied for about an hour the offices of more than 200 Republican lawmakers. Advocacy groups held marches, prayer vigils, and completed a week-long fast with several members of Congress joining the fast for 24 hours, to show their support.

Advocates were hoping to pressure Speaker John A. Boehner to bring to a vote a democratic bill in the House which mirrors the Senate’s and offers a path to citizenship to the 12 million undocumented in the country. The bill has 190 sponsors including three Republicans. The chairman of the Democratic caucus Congressman Becerra of California said that 26 Republicans had expressed support for that bill which would be enough to pass it if Speaker Boehner allowed a vote.

Although immigration reform did not materialize in 2013, many remain confident that a compromise will be reached in 2014. Democratic and Republican House leaders promised that they will address the issue early next year. According to Republican Congressman Robert W. Goodlatte (VA), chair of the Judiciary Committee, immigration would be top priority in 2014.

Speaker Boehner also deems immigration as a priority legislation in the new year. Michael Needham, chief executive of the conservative advocacy group Heritage Action said in an interview that the speaker wants to clear the way for immigration reform next year and he has been very clear of that. Speaker Boehner even hired immigration policy expert Rebecca Tallent to lead his team.

The budget deal that was struck between House Republicans and Senate Democrats is also seen as a positive sign for immigration reform in 2014. The bipartisan budget deal rids threats of fiscal crises such as government shutdown for the next two years and will allow lawmakers to address major issues in the agenda including immigration reform.

The staunch opposition of the majority of House Republicans to the proposed pathway to citizenship for the 12 million undocumented immigrants in the country, however, remains the biggest challenge.

Republican Congressman David Valadao (R-Cal.) and Jeff Denham, (R-Cal.) are pushing their Republican colleagues to sign a letter supporting immigration reform. They are looking to present the letter to Speaker Boehner in January. It is hoped that Boehner’s passing the bipartisan budget deal is evidence that he might also be willing to support an immigration bill that is not supported by the majority of the Republican Party.

Meanwhile, immigration advocates indicated that their protests will intensify next year. Frank Sharry, executive director of America’s voice said that “Reform is a matter of when, not if.” With House leaders signifying that immigration legislation is top priority next year, the growing support from the American people and the unwavering determination of advocates, 2014 looks to be a promising year for immigration reform.

Parole for Military Family Members

The USCIS recently issued a policy memorandum clarifying the grant of parole to families of military members and veterans who are already in the United States and who entered without inspection. This allows them to remain in the country and apply for green cards, if eligible. The policy also clarifies that adjustment of status may be granted to aliens paroled into the US.

Parole that is typically granted by the Secretary of Homeland Security for “urgent humanitarian reasons or significant public benefit” is used to permit an alien outside the United States to enter the country. The policy clarified that aliens who are physically present in the US but who entered without inspection or admission may also be granted parole. This is called “parole in place.”

Under the current law, an individual cannot adjust his status even if he is the spouse, parent or child of a U.S. citizen if he entered the U.S. without admission or parole. For him to get a green card, he has to travel abroad to a U.S. consulate. However, once he leaves the U.S. he will be subject to the 3 year/10 year inadmissibility bar. If he is granted parole he does not have to depart and may adjust status in the U.S.

The new policy was issued to address concerns that the members of the military could face stress and anxiety because of the immigration status of their family members. This has the potential effect of adversely affecting military preparedness.

Many of those serving in the military are foreign-born. Since 2002 over 92,700 have become U.S. citizens. Data from the Department of Defense in 2011 showed that Mexico (12 percent) and the Philippines (10 percent) were the leading countries of origin for immigrants in the military.

Eligible family members specified in the policy memorandum include the spouse, child or parent of an Active Duty member of the U.S. Armed Forces or the Selected Reserve of the Ready Reserve or an individual who previously served in U.S. Armed Forces or the Selected Reserve of the Ready Reserve which includes the National Guard.

The Secretary’s authority to grant parole is discretionary. However, the memorandum emphasized that one of the factors which weigh heavily in favor of parole in place is when the applicant is a spouse, child or parent of an Active Duty member or an individual who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve.

If the applicant has no criminal convictions and absent other serious adverse factors, parole in place would generally be granted in the exercise of discretion. Parole is granted in one-year increments and request for extension may be granted, if appropriate.

Request for parole is made on Form I-131 and is filed with the director of the USCIS office with jurisdiction over the alien’s place of residence. Evidence of family relationship as well as evidence of the alien’s family member is an Active Duty member or an individual who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve must be submitted with the application.

When parole is granted, the two inadmissibility grounds under the immigration law are eliminated. The first inadmissibility ground relates to an alien who is “present in the United States without being admitted or paroled,” or those who already entered the US without inspection. The second inadmissibility ground relates to the alien “who arrives in the United States at any time or place other than as designated by the [Secretary of the Homeland Security].” This refers to aliens who are in the process of entering the US without inspection.

An applicant for adjustment of status must comply with the other requirements such as maintenance of status if he is not an immediate relative or Section 245(k) does not apply. He also must satisfy all the other grounds of inadmissibility.

USCIS Expedites Processing of Relative Petitions

There have been concerns regarding the slow adjudication of Form I-130 petitions filed by US citizens for their immediate relatives. Until very recently the USCIS has taken a year to process the petitions and the delay has caused long separation of families.

Another processing problem is the improper rerouting of approved petitions to the National Records Center instead of the National Visa Center in cases when the beneficiary will apply for immigrant visa abroad. The rerouting has led to further delay and unnecessary expenses incurred by the petitioner whose relatives cannot apply for adjustment of status in the US and have to apply for an immigrant visa abroad.

These problems were addressed by the USCIS a couple of weeks ago when it assured the public that it would speed up the processing of Form I-130 petitions. It reported that it was already processing those filed in February 2013 instead of October 2012 as announced earlier.

The USCIS also announced last November 22 that it was identifying and expediting pending I-130 petitions filed by US citizens for their Filipino immediate relatives. This is among the immigration relief measures for those impacted by Typhoon Haiyan.

Furthermore, the USCIS said that it expected the processing to improve to an average of 5 months by May 2014. To achieve this goal, it has started to transfer stand-alone Form I-130s filed by US citizens for their immediate relatives from the National Benefits Center to its Service Centers in Nebraska, Texas and California.

Once a case is transferred, the petitioner will receive a notice of the transfer and where it will be processed. The receipt number will remain the same and the adjudication will take place within 60 days from the transfer. The status of a case can be tracked through the USCIS website which has been recently updated.

If a request for evidence (RFE) is issued, the petitioner is advised to respond fully in a timely manner to the Service Center where it originated. If the petitioner moves to a new address while the case is pending he has to notify the USCIS of the change.

The USCIS has also addressed the problem of improper rerouting which is particularly important to beneficiaries who will not seek adjustment of status in the US or who are not eligible for Section 245 benefits.

In discussions with representatives from the American Immigration Lawyers Association, the USCIS said that the response to Form I-130, Section C, Question 22 will determine where the file will be forwarded.

To ensure routing to the National Visa Center, the consular post has to be indicated in the I-130 form and it’s advisable to state that the beneficiary is ineligible under Section 245. If the form is correctly filled out and the case is improperly sent to the National Records Center, the local USCIS Field office should be contacted so that the file will be routed to the National Visa Center without filing Form I-824.

Form I-824 is an application to request further action on a previously approved application or petition and the filing fee is $405. It may be used to request USCIS to send an approved immigrant visa petition to the US Department of State’s National Visa Center.

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