U.S.C.I.S.'S New Guidance On CSPA Helpful In One Respect, But Flawed In Others
By Alan Lee, Esq.†‡
U.S.C.I.S.'s new guidance on its modification of an earlier interpretation
of the Child Status Protection Act (CSPA) is interesting, but ultimately
unsatisfactory on a number of points which will hopefully be treated
more favorably in the CSPA regulation making its way through the
regulatory process of U.S.C.I.S. and the Office of Management &
Budget (OMB). The new guidance changes the agency's past position
that an alien beneficiary of a visa petition that was approved before
August 6, 2002 (the date of enactment of the CSPA) and aged out
before that date could only be covered by the CSPA if he/she had
filed an application for permanent residence (either adjustment
of status or an immigrant visa) on or before August 6, 2002, and
no final determination had been made on that application prior to
August 6, 2002. The guidance was presented in 3 parts - Donald Neufeld,
Acting Associate Director, Domestic Operations', "Memorandum
for Field Leadership, et al. Subject: AFM Update: Chapter 21.2 (e)
The Child Status Protection Act of 2002 (CSPA) (AD07-04)",
the U.S.C.I.S. update of May 6, 2008, "U.S.C.I.S. Issues Revised
Guidance on Child Status Protection Act (CSPA),” and fact
sheet of May 6, 2008, "U.S.C.I.S. Issues Revised Guidance on
the Applicability of the Child Status Protection Act (CSPA)."
The new guidance now acknowledges that an application for adjustment
of status or immigrant visa did not necessarily have to be filed
by August 6, 2002, for the child in that situation to obtain CSPA
benefits – that where the child qualified as an immediate
relative of a U.S. citizen and was under 21 at the time that the
immediate relative category petition was filed and so long as there
was no final determination by August 6, 2002, the alien is recognized
as a child under the CSPA. Also that where the child qualified as
a preference category beneficiary, he/she can now obtain CSPA benefits
as long as he/she was still under the age 21 when the priority date
was reached and filed an application for adjustment of status or
immigrant visa within one year of the visa availability date so
long as there was no “final determination” on his/her
case by August 6, 2002. The guidance remedies include motions to
reopen without fee to the local office of U.S.C.I.S. for those who
filed I-485 adjustment of status applications on or after August
6, 2002, and were denied on the sole basis that the applicant did
not fit the definition of a child; and new I-485 filings for applicants
who never filed before, and either qualified as immediate relatives,
or preference category beneficiaries whose priority dates became
current on or after August 7, 2001, did not apply for permanent
residence status within one year of petition approval, but would
have otherwise qualified for CSPA coverage.
This new guidance is USCIS’s response to the 2007 Board of
Immigration Appeals (BIA) decision, Matter of Avila-Perez, which
held that an immediate relative child whose I-130 petition was approved
in 1996 at the age of 20 and I-485 adjustment of status application
filed in 2003 was allowed to keep his status as a child as the CSPA
statute does not require an application to be pending on August
6, 2002. The BIA found that, upon review of the legislative history
of the CSPA, it could find no indication that Congress intended
to exclude from coverage of the CSPA those individuals whose visa
petitions were approved before its effective date, but waited until
after its effective date to file an adjustment application. The
Board also pointed out that it was reasonable to conclude that the
Senate intended to expand the coverage of the statute beyond those
individuals whose visa petitions and applications were pending on
the date of the CSPA to also protect those individuals whose visa
petitions were approved before the effective date, so long as their
applications had not already been finally adjudicated.
The guidance, however, does not go far enough in defining the term,
"final determination" before August 6, 2002, that would
bar an applicant from the benefits of the CSPA. The immigration
laws provide that an adjustment of status application can be renewed
in proceedings before the immigration court, and the BIA had earlier
held in a 2006 unpublished decision, Matter of Ki Na Kim, that an
I-485 application which has been administratively denied (in that
case on April 19, 2002) does not constitute a final denial as it
can be renewed before the immigration judge. This position was repeated
by the Board in Avila-Perez in allowing the applicant to pursue
his claim in removal proceedings, the Board also noting the 2004
Ninth Circuit case of Padash v. INS which defined the final determination
to include an appeal in the federal court. The guidance could have
easily informed applicants in the situation of their ability to
renew their I-485 applications before the immigration court if their
cases had not yet been referred there and provided a procedure by
which local offices of U.S.C.I.S. could assist in issuing Notices
To Appear (NTAs) so that applicants could pursue this avenue of
relief. Otherwise applicants are left with no set procedure to have
an NTA expeditiously issued, and as we know from experience, affirmatively
requesting an NTA from the U.S.C.I.S. or U.S.I.C.E. usually involves
much time and effort.
The guidance also takes an unwarranted harsh interpretation on
a point that we have been raising with USCIS and the Department
of State (DOS) over the past few years - that the principal alien
adjusting status in the U.S. should not be bound to submit an I-824
application for his overseas dependents to immigrate within a year
of visa availability in satisfaction of the statute’s wording
that the applicant “sought to acquire” residence status
within that period since the U.S.C.I.S.' instruction on I-824 filing
was and is that there is no ability to file until the petition or
application is approved. We provided documentation to the agencies
in our cases of specific instances in the past in which I-824 applications
filed concurrently with I-485 applications were denied for untimely
filing -- the Service decisions saying that applications were only
to be filed once the I-485 adjustment of status applications were
approved. Even now, the accompanying instructions on the I-824 form
state the following:
When Should I Use Form I-824?
You should use Form I-824 to request the Bureau of Citizenship
and Immigration Services (CIS) to provide further action on a previously
approved petition or application.
Note: The CIS will not process Form I-824 if your petition or application
has been denied or has not yet been approved. This form should not
be used to verify the status of a pending petition or application.
(Instruction Sheet to Form I-824 (Rev. 07/09/04)
Nowhere on the form's instructions does it state that an I-824
can be concurrently filed with an I-485 application. To this point,
the guidance states that "A previously filed I-824 that was
denied because the principal alien's adjustment of status application
had not yet been approved can serve as evidence of having 'sought
to acquire' LPR status ... Consequently, neither a labor certification
nor a visa petition will satisfy the 'sought to acquire' LPR status
requirement because these actions are an integral part of the visa
petition approval process and will necessarily precede visa availability."
This language unfortunately tracks a recent DOS opinion to us on
one of our cases in which DOS stated that we had to show that our
client himself actually attempted to file an I-824 application.
In that case, we posited that the "sought to acquire"
LPR status language was satisfied by the principal alien's marking
on his I-485 form that his wife and child would follow to join him
in the United States and that he clearly marked "yes"
on the I-485 Part 3 Section B that he wished his wife and child
to apply with him. The U.S.C.I.S. should not be so close-minded
on what constitutes fulfillment of the "sought to acquire"
statutory language of the CSPA, only accepting the filing of an
I-824 to satisfy the statute. The CSPA statute does not insist upon
an I-824 application, thus allowing applicants to show by other
indicia that they "sought to acquire" LPR status. The
guidance here is especially unwarranted given U.S.C.I.S.'s contradictory
I-824 instruction sheet and the past practice of some of its officers
denying I-824s concurrently filed with I-485s. If the agency's own
trained officers did not know that form I-824 could be concurrently
filed with an I-485, how was the average member of the public supposed
to know?
The guidance also spends considerable time in defining the counting
procedure for determining whether a preference category applicant
qualifies as being under the age of 21 and giving proper credit
for the time that a petition has been pending with the U.S.C.I.S..
However, it fails to take into account the 45 days which can also
be credited to a CSPA beneficiary under the U.S. Patriot Act for
cases in which the beneficiary turned the age of 21 after September
2001 and the petition or application was filed on or before September
11, 2001. As remedial legislation, liberal interpretation should
be given to the CSPA provisions to allow the largest class of individuals
to benefit, and U.S.C.I.S.'s interpretation of CSPA counting without
the additional 45 days of the U.S. Patriot Act is restrictive, especially
as the Department of State has taken a contrary position.
Under the circumstances, while politely applauding U.S.C.I.S.'s
bowing to the BIA's decision of Avila-Perez, we reach the conclusion
that the guidance is flawed, and hope that it is not a precursor
of U.S.C.I.S.'s mindset in preparing the CSPA regulation which is
expected be promulgated by summer's end.
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