9th Circuit Court of Appeals - No Retention of Priority Dates

[Jojo92122 1,924]

No big surprise that Attorney Shusterman did not publicize how his firm lost a big class action CSPA lawsuit.

http://shusterman.com/childstatusprotectionact.html#5A

http://shusterman.com/pdf/9thcircuitdecisionCSPA.pdf

http://www.msnbc.msn.com/id/32556526/#.TmLhxoJDSuI

Here is some background and a quick summary;

CSPA was intended to help some aged out children due to slow processing by USCIS.

Before CSPA, a child of a US citizen would age out from the Immediate Relative category to the F1 family preference category if he/she turned 21 when the I-130 was being processed. CSPA was intended to freeze the child's age by stating that the time it takes USCIS to process the I-130 was not counted against the beneficiary.

CSPA also helps some aged out children in the family preference category.

Some aged out children who did not benefit from USCIS's interpretation of CSPA sued and argued that CSPA allows them to retain a parent's PD. For example; US citizen petitions for brother in 2000 when his nephew is 20 years old. Nephew aged out and CSPA does not help. Brother immigrates to the US in 2010 and files an I-130 for his son and argues that under CSPA the son can retain the father's PD which is 2000. Since the PD in the F2b category is around 2002, the son would be eligible for a visa under the father's interpretation of CSPA. USCIS, Homeland Dept., and State Dept. argued that CSPA does not require retention of the father's PD.

The 9th Circuit Court of Appeals ruled on 9/02/2011 that CSPA is ambiguous. However, the US government's interpretation is reasonable and must be given deference. The Court ruled in favor of the US government and stated there is no automatic conversion and retention of the PD when a derivative beneficiary ages out and seeks to retain a parent's PD.

Is this the end of the retention of PD argument????? Probably for very good reasons. First, deference is usually given to the US government's interpretation of ambiguity in laws when it is a reasonable interpretation. That is the reason given for ruling for the US government in this CSPA case. Second, the 9th Cir. is considered the most liberal of all the federal court districts. The US Supreme Court leans conservative. It's unlikely this CSPA case will be successfully appealed.

Edited September 4, 2011 by Jojo92122

[JimVaPhuong 4,863]

Very interesting read. Thanks!

In a nutshell, they're saying that a beneficiary who ages out can retain their priority date only if the original petition can be automatically converted to a different visa category. A derivative beneficiary who ages out can't benefit from this because the original petition was for their parent. It can't be automatically converted for the benefit of the derivative. A subsequently filed petition by the parent after immigrating could not retain the priority date of the original petition because it's a new petitioner and a new beneficiary.

[Jojo92122 1,924]

Very interesting read. Thanks!

In a nutshell, they're saying that a beneficiary who ages out can retain their priority date only if the original petition can be automatically converted to a different visa category. A derivative beneficiary who ages out can't benefit from this because the original petition was for their parent. It can't be automatically converted for the benefit of the derivative. A subsequently filed petition by the parent after immigrating could not retain the priority date of the original petition because it's a new petitioner and a new beneficiary.

Yup. The only way that "automatic conversion" and "retention of PD" can work is if the original petitioner could have filed separately for the aged out derivative beneficiary. This could only work in the F2a situation where an LPR parent files a single I-130 petition for his/her spouse and derivative beneficiary children under 21. The children ages out and their CSPA ages are over 21 when the PD becomes current. It is possible for an LPR parent to petition for unmarried children over age 21 (F2b category). The original petition can file for his CSPA aged out children These are F2b cases (LPR petitioning for an unmarried child over age 21) and it would be possible to do an "automatic conversion" from F2a to F2b and for the second case to retain the PD from the first case.

"Automatic conversion" and "retention of PD" will not work in the following situations;

F2a or F2b; LPR petitioning for an unmarried child who has derivative beneficiary children. Since the petitioner cannot file for his/her grandkids, there is no AC or RoPD.

F3: US citizen petitioning for a married child with derivative beneficiary children. Since the petitioner cannot file for his/her grandkids, there is no AC or RoPD.

F4: US citizen petitioning for a sibling and derivative beneficiary children. Since the petitioner cannot file for nephews and nieces, there is no AC or RoPD.

Edited September 4, 2011 by Jojo92122

[Jojo92122 1,924]

Yup. The only way that "automatic conversion" and "retention of PD" can work is if the original petitioner could have filed separately for the aged out derivative beneficiary. This could only work in the F2a situation where an LPR parent files a single I-130 petition for his/her spouse and derivative beneficiary children under 21. The children ages out and their CSPA ages are over 21 when the PD becomes current. It is possible for an LPR parent to petition for unmarried children over age 21 (F2b category). The original petition can file for his CSPA aged out children These are F2b cases (LPR petitioning for an unmarried child over age 21) and it would be possible to do an "automatic conversion" from F2a to F2b and for the second case to retain the PD from the first case.

As stated; the AC and RoPD COULD work for F2a derivative children who aged out and CSPA cannot help them. The operative word is "could." I hope no one relies on this. If you think a derivative beneficiary may age out in the F2a category, then file separately. For example: LPR dad files for mom and derivative son who is a few days shy of turning 21. Son ages out and his CSPA age is over 21. Should they rely on CSPA and retention of PD in filing for the son later? No if they can help it. It would be wiser for dad to file separately for son from the beginning.

"Automatic conversion" and "retention of PD" will not work in the following situations;

F2a or F2b; LPR petitioning for an unmarried child who has derivative beneficiary children. Since the petitioner cannot file for his/her grandkids, there is no AC or RoPD.

F3: US citizen petitioning for a married child with derivative beneficiary children. Since the petitioner cannot file for his/her grandkids, there is no AC or RoPD.

F4: US citizen petitioning for a sibling and derivative beneficiary children. Since the petitioner cannot file for nephews and nieces, there is no AC or RoPD.

I couldn't edit my post, so I made some changes here.

Edited September 4, 2011 by Jojo92122