Child Aging Out? CSPA may help

[raverz 1]

Excerpt from Shusterman.com's July 2012 Newsletter (http://shusterman.com/newsletterusimmigrationjuly2012.html#4) :

On June 19, together with Attorney Nancy Miller, I appeared before an en banc panel (11 judges) of the U.S. Court of Appeals for the 9th Circuit to argue in favor of a provision of the Child Status Protection Act (CSPA) which Congress meant to allow nuclear families to remain together during what can be a long and tedious immigration process. The video of the oral argument is available online.

This is a nationwide class action lawsuit which will affect tens of thousands of immigrant families from every country in the world, but especially those from countries with long backlogs in the family and employment preference categories like Mexico, the Philippines, India and China.

Before CSPA was enacted, whenever a child of intending immigrants turned 21 years of age, he was said to have “aged-out” and could no longer immigrate to the U.S. together with his parents, this despite the fact that he may have patiently stood in line with his parents for 10 or even 20+ years.

In order to correct this unfair result and to avoid separating families, Congress passed CSPA in 2002. One section of CSPA allows the child to subtract the time that the I-130 or I-140 was pending from his age when his priority date becomes current. Say that the priority date becomes current on his 25th birthday, and the visa petition was pending for 5 years. Under this formula, the child’s CSPA age is 25 minus 5, or 20 years old. Thus, CSPA allows him to immigrate together with his parents.

Of course, no child has any control over how long the USCIS takes to approve his visa petition. This is simply a matter of luck, the longer the better for purposes of this formula. Using the example above, let’s say that the visa petition was pending only 1 year instead of 5. In this example, his CSPA age would be 25 years minus 1, or 24 years old. Thus, the child whose petition was pending 5 years can immigrate together with his parents while the child whose petition was only pending one year cannot. This makes no sense.

Couldn’t the parents sponsor their son after they obtain permanent residence? They could do so under the family-based 2B category, unmarried adult sons and daughters of lawful permanent residents. But when you do the numbers, and look at how many people are waiting in the 2B line, you quickly learn that it would take a Filipino son over 32 years to join his parents in the U.S., and for Mexico (Are you ready for this?), over 115 years!

Fortunately, Congress recognized this problem when they drafted the law, and added a second part to the formula. When a child’s age is determined to be over 21 years old in part one of the formula, his petition automatically converts to the 2B category, and he is allowed to “retain” the priority date of the original petition. Therefore, if the original petition was submitted 20 years ago, the child gets credit for the time that he stood in line side-by-side with his parents, and may be able to immigrate either together with his parents or soon thereafter.

Unfortunately, the government ignores the plain language of CSPA, and insists that this constitutes “jumping to the front of the line”, conveniently ignoring the fact that the child has waited in line for many years. And at the oral arguments, it was apparent that at least one or more of the judges may agree with the government’s position. It is curious, however, that the two agency regulations that the government cites in its brief both give immigrants credit for the time that they stood in line in one category although they are immigrating in another category. Apparently, the government believes that consistency is “the hobgoblin of small minds”.

It may take a few weeks, or even a few months, for the Court to issue its decision. And the losing side will be able to ask the Supreme Court to review the 9th Circuit’s decision.

Meanwhile, thousands of immigrant parents will remain separated from their sons and daughters.

[JimVaPhuong 4,863]

Interesting. I wonder where he came up with those wait times for F2B's from the Philippines and Mexico. According to the current visa bulletin, it's 11 years for a Filipino F2B and 20 years for a Mexican F2B.

He's talking about derivatives. General USCIS policy is that derivatives do not automatically convert when they age out, nor can they retain the priority date of the primary beneficiary's petition. The one exception they make is if the alien is a derivative of an F2A filed for their parent (i.e., the spouse of an LPR), and if a second petition can be filed by the same petitioner. In that case, the derivative's F2B petition should inherit the priority date of the parent's F2A petition.

It sounds like Shusterman is suing to get USCIS to make the same exception in all family preference categories. Well, he's right that the law is clear, but not the way he wants it to be. 8 CFR 204.2(a)(4) makes it clear that this exception applies only to derivatives of an F2A petition. He's not suing to change policy. He's suing to change the law.

[aaron2020 11,651]

Shusterman has already lost in district court and at the appellate level. He is now going for try #3 with an en banc panel of the 9th (the most liberal court in the US).

Under the Chevron decision, the US agency's interpretation of the law is given deference when it is reasonable and not clearly prohibited. It will be incredibly hard to prove that Congress intended that no one ever ages out under CSPA. If Congress had wanted to do that, it could have said so instead of implementing CSPA with all its complexity. It doesn't make sense that Congress would maintain 21 as the aging out point, and then have a complex law saying that doesn't matter. Then again, laws do not have to make sense.

It's unlikely that the 9th will overturn USCIS's interpretation under the Chevron decision. The 9th is well aware of its overturn rate with the US Supreme. Adding another one is not going to happen IMHO.

[aaron2020 11,651]

Interesting. I wonder where he came up with those wait times for F2B's from the Philippines and Mexico. According to the current visa bulletin, it's 11 years for a Filipino F2B and 20 years for a Mexican F2B.

He's talking about derivatives. General USCIS policy is that derivatives do not automatically convert when they age out, nor can they retain the priority date of the primary beneficiary's petition. The one exception they make is if the alien is a derivative of an F2A filed for their parent (i.e., the spouse of an LPR), and if a second petition can be filed by the same petitioner. In that case, the derivative's F2B petition should inherit the priority date of the parent's F2A petition.

It sounds like Shusterman is suing to get USCIS to make the same exception in all family preference categories. Well, he's right that the law is clear, but not the way he wants it to be. 8 CFR 204.2(a)(4) makes it clear that this exception applies only to derivatives of an F2A petition. He's not suing to change policy. He's suing to change the law.

The Code of Federal Regulations is NOT the law. It is the federal agencies' interpretations of the law. While it may have the force of law, it is not the law. As long as the regulations are reasonable, the CFR is given deference under the Chevron decision. However, the agencies' interpretations of the law as embodied by the CFR can be challenged and courts have ruled that the agencies' interpretations are not reasonable.

While "8 CFR 204.2(a)(4) makes it clear that this exception applies only to derivatives of an F2A petition," it is not the law. It is merely the agencies' interpretation of CSPA. It can be challenged. This is why the court have heard the case instead of throwing it out on summary judgment. If the CFR was the law and it was clear, then there would be no reason for the court to hear the case. There is enough there for a prima facie challenge of 8 CFR 204.2(a)(4).

Being able to challenge the CFR is one thing. Winning in court is another matter.

[JimVaPhuong 4,863]

The Code of Federal Regulations is NOT the law. It is the federal agencies' interpretations of the law. While it may have the force of law, it is not the law. As long as the regulations are reasonable, the CFR is given deference under the Chevron decision. However, the agencies' interpretations of the law as embodied by the CFR can be challenged and courts have ruled that the agencies' interpretations are not reasonable.

While "8 CFR 204.2(a)(4) makes it clear that this exception applies only to derivatives of an F2A petition," it is not the law. It is merely the agencies' interpretation of CSPA. It can be challenged. This is why the court have heard the case instead of throwing it out on summary judgment. If the CFR was the law and it was clear, then there would be no reason for the court to hear the case. There is enough there for a prima facie challenge of 8 CFR 204.2(a)(4).

Being able to challenge the CFR is one thing. Winning in court is another matter.

Fair enough. He's suing to change the federal regulations.

[vikky 1]

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http://www.facebook.com/pages/***removed***-USA/267662779919467

[cardilene 26]

NEW HOPE FOR CHILDREN WHO "AGED – OUT"

http://www.gurfinkel.com/imm_updates159.htm

[renny745 1]

I am a permanent resident as of oct 16 2012, and my son will be 17 november 28, i was wondering if theres is anyhting cspa can do that i can sponsor him, because will turn 21 before i am a citizen.

[wannabe 1]

Yes CSPA can help in your case. As a permanent resident, you can still file a petition for your underage unmarried son/daughter under the category of F2A and being underage will protect your son from "aging out" when he turns 21. But upon becoming 21, his category will be switched to F2B. This is when the CSPA will have to be applied in his case to retain his status. Also, if you become a citizen, during this time, the category can be changed for your son to speed up the process.

Please refer to the link: http://goo.gl/clCtN

Also, when did you gain your permanent resident status (LPR)?

Let me know if that explains.

I am a permanent resident as of oct 16 2012, and my son will be 17 november 28, i was wondering if theres is anyhting cspa can do that i can sponsor him, because will turn 21 before i am a citizen.

[renny745 1]

Yes CSPA can help in your case. As a permanent resident, you can still file a petition for your underage unmarried son/daughter under the category of F2A and being underage will protect your son from "aging out" when he turns 21. But upon becoming 21, his category will be switched to F2B. This is when the CSPA will have to be applied in his case to retain his status. Also, if you become a citizen, during this time, the category can be changed for your son to speed up the process.

Please refer to the link: http://goo.gl/clCtN

Also, when did you gain your permanent resident status (LPR)?

Let me know if that explains.

I will become a citizen around a year after he turns 21,would cspa be able to help get his age under twenty one by the time i become a citizen? , I gained LPR October 16,2012

[conkwan90 0]

I don't want to trust the CSPA Calculator....

[JimVaPhuong 4,863]

I don't want to trust the CSPA Calculator....

It uses the same mathematical formula the government uses. There's no reason not to trust it.

[aleful 1,905]

I will become a citizen around a year after he turns 21,would cspa be able to help get his age under twenty one by the time i become a citizen? , I gained LPR October 16,2012

no, you have to become a USC before he turns 21, if not, he will only change category to unmarried child over 21 of a USC

[nsranapk 1]

My mother is green Card holder, she filed for me in Aug 2010, I was under 21 year (DOB 01-27-1990, My application got approved on 2nd Nov. 2010. NVC ask for supported docmuent and fee.

I submitted all documents and all fee (AOS fee and Visa fee)by end of November, at that time visa were available for Priority date Aug 01, 2010, but my Priority date was Aug 24, 2010.

In January 2011, because of visa retrogress, I waited for 2 years, now my PD is current, but NVC change my catagory from F2A to F2B. IS CSPA is applicable in my case? Please help me with your

replied

PD: Aug 24 2010

Approval Date: Nov 02, 2010

DOB : 01-27-1990

[JimVaPhuong 4,863]

My mother is green Card holder, she filed for me in Aug 2010, I was under 21 year (DOB 01-27-1990, My application got approved on 2nd Nov. 2010. NVC ask for supported docmuent and fee.

I submitted all documents and all fee (AOS fee and Visa fee)by end of November, at that time visa were available for Priority date Aug 01, 2010, but my Priority date was Aug 24, 2010.

In January 2011, because of visa retrogress, I waited for 2 years, now my PD is current, but NVC change my catagory from F2A to F2B. IS CSPA is applicable in my case? Please help me with your

replied

PD: Aug 24 2010

Approval Date: Nov 02, 2010

DOB : 01-27-1990

Sorry. In December, 2010, the cutoff date for F2A was August 1, 2010. In January, 2011, the cutoff date retrogressed to January 1, 2008. Since your priority date never became current you didn't lock in your age by filing the visa application. You did everything you were supposed to do, but the NVC calendar unfortunately beat you by 23 days.

You have aged out in the F2A category, and are now F2B category. You've got about another 8 years to wait.