Tag Archive for: sought to acquire

Cyrus Mehta

CSPA Disharmony: USCIS Allows Child’s Age to be Protected under the Date for Fling while DOS Allows Child’s Age to be Protected under the Final Action Date

/0 Comments/in /by

By Cyrus D. Mehta

On February 14, 2023, the USCIS recognized that the age of the child gets protected  under the Child Status Protection Act when the Date for Filing (DFF) in the  Department of State (“DOS” or “State Department”) Visa Bulletin becomes current.

Since October 2015, the State Department Visa Bulletin two different charts to determine visa availability – the Final Action Dates (FAD) chart and the Dates for Filing (DFF) chart. The DFF in the Visa Bulletin potentially allows for the early filing of I-485 adjustment of status applications if eligible applicants are in the United States. The FAD is the date when permanent residency can be granted.  The Filing Date, if the USCIS so determines, allows for the early submission of an I-485 application prior to the date when the green card actually become available.

Prior to February 14, 2023, the USCIS maintained that the FAD protected the age of the child and not the DFF.  Using the DFF to protect the age of the child who is nearing the age of 21 is clearly more advantageous – the date becomes available sooner than the FAD – but USCIS policy erroneously maintained since September 2018 that only the FAD could protect the age of the child.

The USCIS on February 14, 2023 at long last agreed to use the DFF to protect the age of the child, and acknowledged this:

“After the publication of the May 2018 guidance, the same applicant for adjustment of status could have a visa “immediately available” for purposes of filing the application but not have a visa “become available” for purposes of CSPA calculation. Applicants who filed based on the Dates for Filing chart would have to pay the fee and file the application for adjustment of status without knowing whether the CSPA would benefit them. To address this issue, USCIS has updated its policies, and now considers a visa available to calculate CSPA age at the same time USCIS considers a visa immediately available for accepting and processing the adjustment of status application. This update resolves any apparent contradiction between different dates in the visa bulletin and the statutory text regarding when a visa is “available.”

Even if the child’s age is protected  when the DFF becomes current, the applicant must have sought to acquire permanent resident status within one year INA 203(h)(1)(A). According to the USCIS Policy Manual this could include filing a Form I-485, Form DS 260, paying IV fee, I-864 fee, I-824 or requesting transfer of underlying basis of an I-485.

Unfortunately, USCIS’s policy of using the DFF to protect a child’s age seems only to pertain to individuals who apply for adjustment of status within the United States. The Department of State (DOS) has yet to issue any corresponding guidance or update the Foreign Affairs Manual (FAM) in accordance with USCIS’s new policy. The FAM still states that an applicant’s “CSPA age’ is determined on the date that the visa, or in the case of derivative beneficiaries, the principal applicant’s visa became available (i.e., the date on which the priority date became current in the Application Final Action Dates and the petition was approved, whichever came later) (emphasis added)”. Thus, an applicant outside the U.S. who pays an immigrant visa (IV) fee may satisfy the “sought to acquire” requirement, but only based on the FAD becoming current. This uneven policy makes little sense, and the DOS should promulgate its own guidance in accordance with USCIS’s policy to ensure that the DFF can also be used to protect the age of a child who processes for a visa overseas.

This results in an odd anomaly. A child who is seeking to immigrate through consular processing in the foreign country may not be able to take advantage of the CSPA under the DFF while a child who is seeking to adjust status while in the US can have the age protected under the DFF. Take the example of an Indian born beneficiary of a Family-Based Third Preference Petition, which applies to married sons and daughters of US citizens. The I-130 petition was filed by the US citizen parent on behalf of the married daughter, Nikki,  on March 2, 2009. The FAD on this I-130 petition became current under the State Department Visa Bulletin on January 1, 2024 and Nikki has been scheduled for an immigrant visa interview date on February 1, 2024 at the US Consulate in Mumbai. But the daughter’s son, Vivek, who was born on June 1, 1998 has already aged out and cannot get protected under the FAD since he is already 26.

On the other hand, the DFF on this petition became current on June 1, 2020.  The NVC notified Nikki and her derivative Vivek to pay the fee and complete the rest of the processing such as filing the DS 260 application. On June 1, 2020, Vivek was already 22 years.  However, the I-130 petition that was filed on March 2, 2009 took one year  and 1 day to to get approved on March 3, 2010. Under INA 203(h)(1)(A) the CSPA age is calculated based on the age of the child when the visa becomes available reduced by the number of days during which the I-130 petition was pending. So even though Vivek’s biological age on June 1, 2020 was 22, his CSPA age was under 21. By seeking to acquire permanent residency within one year of June 1, 2020, Vivek’s CSPA age got permanently locked in under the DFF.

Nikki paid the NVC fee on December 1, 2020  but took her time with the completion of  the DS 160 applications, which were submitted sometime in the month of  July 2021. Vivek’s age is protected under the DFF on June 1, 2020, which became current well before the FAD became current. He also sought to acquire lawful permanent resident status by paying the NVC fee within one year of June 1, 2020 along with his mother, Nikki, even though they filed their DS 260 applications after a year from the DFF becoming current.  If Vivek is seeking to process the case through consular processing at the US Consulate in Mumbai, he cannot do so as the State Department only recognizes the FAD to protect the child under the CSPA. But if Vivek is in the US in a nonimmigrant status such as F-1 he will luck out. Once Nikki is issued the immigrant visa in Mumbai, she can get admitted in the US as a permanent resident. Vivek can subsequently file an I-485 application in the US while in F-1 status as a follow to join derivative. Vivek can also argue that he sought to acquire permanent resident status by paying the NVC fee within 1 year of the DFF becoming current.

If for any reason Vivek’s  I-485 application is denied because the USCIS did not accept that the payment of the NVC fee amounted to Vivek seeking to acquire, he would still arguably as explained in our prior blog be able to maintain F-1 status under Matter of Hosseinpour, which recognized  inherent dual intent in nonimmigrant visas. Matter of Hosseinpour involved an Iranian citizen who entered the U.S. as a nonimmigrant student and later applied for adjustment of status. After his adjustment of status application was denied, he was placed in deportation proceedings and found deportable by an immigration judge on the ground that he violated his nonimmigrant status by filing an adjustment of status application. The BIA disagreed with this interpretation of the nonimmigrant intent requirement for foreign students, noting the amendments to the Immigration and Nationality Act had expressly removed a provision stating that an individual’s nonimmigrant status would automatically terminate if he filed an adjustment of status application. Thus, the BIA held that “filing of an application for adjustment of status is not necessarily inconsistent with the maintenance of lawful nonimmigrant status”. The BIA also referred to legal precedent which states that “a desire to remain in this country permanently in accordance with the law, should the opportunity to do so present itself, is not necessarily inconsistent with lawful nonimmigrant status.” (See Brownell v. Carija, 254 F.2d 78, 80 (D.C. Cir. 1957); Bong Youn Choy v. Barker, 279 F.2d 642, 646 (C.A. 9, 1960). See also Matter of H-R-, 7 I & N Dec. 651 (R.C. 1958)).

Notwithstanding the disharmony between the USCIS and State Department CSPA policy, Vivek is able to take advantage of the more favorable DFF because he happened to be in the US in F-1 status and the USCIS belatedly recognized that the DFF could be relied on to protect the age of the child on February 14, 2023. Not all derivative beneficiaries might be so fortunate. Take the example of Vivek’s twin sister Kamala who is not in the US in F-1 status like her brother. Her only option to take advantage of the more favorable DFF is to obtain a B-2 visa and then file an I-485 in the US after Nikki is admitted as a lawful permanent resident. It might be impossible for Kamala to obtain a B-2 visa as the nonimmigrant visa applicant needs to demonstrate a foreign residence abroach which she has not abandoned. A consular officer may well refuse her application for the B-2 visa under INA 214(b) as she has not been able to establish that she is not an intending immigrant. Even if Kamala already obtained a B-2 visa stamp previously, she would need to enter the US in B-2 status and subsequently file the I-485 with the USCIS. The USCIS may deny the I-485 if Kamala entered the US with an intent to file for permanent residency in the US under the fraud or willful misrepresentation ground of inadmissibility under INA 212(a)(6)(C)(i). Of course, if Kamala is able to get admitted into the US on a dual intent H-1B or L-1 visa, she can file the I-485 application without any issues.

If the DOS aligned its CSPA policy with the USCIS, there would be no need for such convoluted albeit legal workarounds. Both Vivek in the US and Kamala in India would be able to seek the protection of the CSPA based on the DFF becoming current on June 1, 2020.

Cyrus Mehta

USCIS Updates Policy Guidance on CSPA ‘Sought to Acquire’ Requirement After Using Filing Date to Protect the Age of the Child

/0 Comments/in /by

By Cyrus D. Mehta and Kaitlyn Box*

As detailed in a prior blog, USCIS issued updated guidance on February 14, 2023 on when an immigrant visa number “becomes available” for the purpose of calculating a noncitizen’s age under the Child Status Protection Act (CSPA). Prior to February 2023, USCIS had taken the position that only the Final Action Date (FAD) protects a child’s age, not the Date for Filing (DFF). This position resulted in children aging out before the FAD became current, and their I-485 applications getting denied, although they had been permitted to apply for adjustment of status using the DFF. In numerous previous blogs (see here, here, and here), Cyrus Mehta advocated for a change in USCIS policy to allow the DFF to protect children’s ages under CSPA rather than the FAD. In its February 2023 guidance, USCIS finally adopted this recommendation, acknowledging that “the same applicant for adjustment of status could have a visa ‘immediately available’ for purposes of filing the application but not have a visa “become available” for purposes of CSPA calculation”, and stating that “USCIS has updated its policies, and now considers a visa available to calculate CSPA age at the same time USCIS considers a visa immediately available for accepting and processing the adjustment of status application”.

Regardless of whether the FAD or DFF is used for CSPA purposes, however, INA § 203(h)(1)(A) makes clear that a child’s age is locked “only if the [child] has sought to acquire the status of an alien lawfully admitted for permanent residency within one year of such availability”. In updated guidance issued on August 24, 2023, USCIS clarified that it considers “applicants to have met the sought to acquire requirement if their application to adjust their status was pending on Feb. 14 and they applied to adjust their status within 1 year of a visa becoming available based on the Final Action Dates chart under the policy guidance that was in effect when they applied”. The updated guidance:

  • Explains that USCIS considers the February 14 policy change to be an extraordinary circumstance that may excuse an applicant’s failure to meet the “sought to acquire” requirement;
  • Clarifies that the agency may excuse an applicant’s failure to meet the requirement if they did not apply to adjust status because they could not calculate their CSPA age under the prior policy or their CSPA age would have been calculated as over 21, but they are now eligible for CSPA age-out protection under the new policy; and
  • Clarifies that the agency considers applicants to have met the requirement if their application to adjust their status was pending on February 14 and they applied to adjust status within one year of a visa becoming available based on the Final Action Dates chart under the policy guidance that was in effect when they applied.

USCIS further explains that under the policy guidance in effect before February 14, 2023, some noncitizens may not have applied to adjust status because a visa was not available to calculate their CSPA age under the prior policy or their CSPA age would have been calculated to be over 21 years old. If these noncitizens apply to adjust their status under the new policy issued on February 14, USCIS said, they may not be able to meet the one-year “sought to acquire” requirement. “However, noncitizens who do not meet this requirement may still benefit from the CSPA if they can establish that their failure to meet the requirement was the result of extraordinary circumstances,” USCIS noted.

 

Although it is clear that individuals who were unable to apply for adjustment of status within one year of the DFF becoming current can now claim an exception if the delay in filing was the result extraordinary circumstances, this updated guidance still leaves some questions unanswered.

USCIS’s policy of using the DFF to protect a child’s age seems only to pertain to individuals who apply for adjustment of status within the United States. The Department of State (DOS) has yet to issue any corresponding guidance or update the Foreign Affairs Manual (FAM) in accordance with USCIS’s new policy. The FAM still states that an applicant’s “’CSPA age’ is determined on the date that the visa, or in the case of derivative beneficiaries, the principal applicant’s visa became available (i.e., the date on which the priority date became current in the Application Final Action Dates and the petition was approved, whichever came later) (emphasis added)”. Thus, an applicant outside the U.S. who pays an immigrant visa (IV) fee may satisfy the “sought to acquire” requirement, but only based on the FAD becoming current. This uneven policy makes little sense, and the DOS should promulgate its own guidance in accordance with USCIS’s policy to ensure that the DFF can also be used to protect the age of a child who processes for a visa overseas.

Additionally, some derivative children may not have applied for adjustment of status with their parent while the previous policy was in effect because only the DFF was current and it would not have protected their age. Are these children now able to assert that the policy change constitutes extraordinary circumstances and apply for adjustment of status although more than a year has passed since the visa became available (and the DFF has retrogressed, and the USCIS’s stated policy guidance on retrogression is at odds with this update)?  Based on the new policy, one can argue that the child was eligible to apply for adjustment of status when the DFF became current, and is now eligible to file a late, sought-to-acquire I-485 under the extraordinary circumstances exception. The same logic should also apply to children whose I-485s were denied based on the prior policy because they aged out before the parent’s priority date became current under the FAD and they can file a late motion to reopen.

Finally, the DFF only protects the age under the CSPA if the USCIS has indicated that the DFF can be used to file I-485 applications. For instance, the USCIS for the September 2023 Visa Bulletin has only permitted filing of employment-based I-485 applications under the FAD and not the DFF. Thus, the DFF will not be able to protect the age of the child under the CSPA even if an I-140 is approved and the DFF is current for that I-140 under the relevant employment-based preference.

While it is salutary that the DFF can be used to protect the age of the child under the CSPA, USCIS needs to provide more clarification and harmonize the application of the DFF with the FAD to protect the child’s age under the CSPA.

 

[This blog is for informational purposes only and should not be considered as a substitute for legal advice]

 

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Matter Of O. Vazquez: BIA Issues Precedential Decision on “Sought to Acquire” Under the Child Status Protection Act

/0 Comments/in /by

In Matter of O. Vasquez, 25 I&N Dec. 817 (BIA 2012), the first precedential decision on this issue, the Board of Immigration Appeals has clarified the “sought to acquire” provision under the Child Status Protection Act (CSPA).  The CSPA artificially freezes the age of a child below 21 years of age so that he or she is not deprived of permanent residency when the parent is granted the same status. One of the requirements is for the child to seek permanent residency within one year of visa availability. Often times, a CSPA protected child falls through the cracks by failing to meet the prevailing rigid filing requirements within the one-year deadline. Thus, the meaning of the term “sought to acquire” permanent residency has been hotly litigated in recent times. Does it encompass only a filing of an application or can it encompass something less than a filing of an application for immigration status?

 According to the BIA in Matter of O. Vazquez, an alien may satisfy the “sought to acquire” provision of section 203(h)(1)(A) of the Immigration and Nationality Act (“Act”) by filing an application for adjustment of status or by showing that there are other extraordinary circumstances in the case, particularly those where the failure to timely file was due to circumstances beyond the alien’s control. The BIA further elaborated that the “sought to acquire” requirement could still be met if the applicant filed an adjustment application, but was rejected for technical reasons, such as the absence of a signature. With respect to a showing of extraordinary circumstances, the BIA indicated that an applicant could show that he or she paid an attorney to prepare an application prior to the one year deadline, but the attorney then failed to take the ministerial step of actually filing the application, thus effectively depriving the aged out child from the protection of the CSPA for no fault of its own.

While the BIA did provide examples of “sought to acquire” just short of a filing; unfortunately, the BIA’s interpretation in Matter of O. Vazquez is more restrictive than its earlier interpretations in unpublished decisions discussed in a prior blog, BIA Continues To Reaffirm Broad “Sought To Acquire” Standard Under CSPA.  The BIA stopped short of holding that the term can encompass other actions not associated with the filing of an adjustment application, such as seeking the advice of an attorney or other similar sorts of efforts. In Matter of O. Vazquez, the “aged out” child argued that he sought to acquire permanent residency by consulting a notario organization within one year of the visa availability. The BIA held that such an action did not fall under the “sought to acquire” definition. Given that the CSPA is a remedial statute to ameliorate the hardships caused to children who age out, the facts in this case were also sympathetic as the alien was wrongly advised by an organization not authorized to practice law in the first place, and thus deprived of the chance to be protected under the CSPA.

As a background, INA §203(h), introduced by Section 3 of the CSPA, provides the formula for determining the age of a derivative child in a preference petition even if the child is older than 21 years. To qualify as a child under INA §101(b)(1), one must be below the age of 21 and unmarried. The age is determined by taking the age of the alien on the date that a visa first became available (i.e. the date on which the priority date became current and the petition was approved, whichever came later) and subtracting the time it took to adjudicate the petition (time from petition filing to petition approval). Based on this formula, if the child’s age falls below 21, the child is protected under the CSPA. Specifically, §203(h)(1)(A) also requires the alien to have “sought to acquire” LPR status within one year of visa availability. It is the interpretation of the term “sought to acquire” that was the subject of the Board’s holding in Matter of O. Vazquez.

The BIA unfortunately arrived at this more restrictive interpretation by agreeing with DHS’s position that the reason for Congress not including the term “filed” is because § 203(h) applies to the Department of Homeland Security (DHS) and Department of State (DOS), both of which adjudicate requests for immigration status. The DHS adjudicates applications for adjustment of status from within the US while the DOS adjudicates applications for immigrant visas from outside the US. Under DOS immigrant visa processes, one generally does not “file” an immigrant visa application, DS-230, but rather, the DOS regulations use the word “submit” or “submission” rather than “file” when referring to a DS-230 visa application. See 22 C.F.R. § 42.63 and 22 C.F.R. § 42.63(c). The “filing” of an application in DOS occurs after it is submitted and much later in the process, the BIA noted. See 22 CFR § 42.67(b). According to the BIA, it was due to the difference in the usage of terms in the DOS and DHS regulations that Congress compelled Congress to use the term “sought to acquire” permanent residency rather than to allow for broader actions such as consulting with a notario organization, as was done in Matter of O. Vasquez, to satisfy the “sought to acquire” definition.

Still, it can be argued that the discussion in Matter of O. Vazquez of the use of the word “filing” in DOS regulations, and the multi-step DOS process more generally, does seem to leave room for the possibility that something other than submission of a DS-230 can qualify as seeking to acquire permanent residence for CSPA purposes.  Matter of O. Vazquez holds that “it is reasonable to expect the proper filing of an application, when it comes to DHS cases, as a way to unquestionably satisfy the ‘sought to acquire’ element of the Act.”  25 I&N Dec. at 820.  This holding is limited by its terms to “DHS cases”, in which the formal application process is in the ordinary case more unified into a single step of filing an application form (or that single filing step plus an interview).  The taking of any substantial step in the multistage DOS immigrant-visa process, such as the payment of the immigrant visa fee, as we pointed out in State Department Takes Broader View Of “Sought To Acquire” Provision Under CSPA, or the making of a written request that a particular derivative child be added to a consular case, should arguably still be sufficient to meet the “sought to acquire” requirement even under Matter of O. Vasquez.

Another aspect worth exploring further may be footnote 3 of the decision, on page 821.  The BIA analogizes its “extraordinary circumstances” standard to that applicable to termination-of-registration cases under INA 203(g).  In practice,  DOS has not applied the 203(g) standard as strictly as, say, some IJs apply the asylum one-year “extraordinary circumstances” standard.  If that is so, the linkage of the new Matter of O. Vazquez CSPA sought-to-acquire standard to the 203(g) standard may be significant: the Matter of O. Vazquez standard for extraordinary circumstances is apparently supposed to be interpreted no more strictly than 203(g).

In the view of this author, Congress probably intended the “sought to acquire” requirement to apply more broadly than interpreted in Matter of O. Vazquez. In a prior unpublished decision In re Jose Jesus Murillo, A099 252 007 (October 6, 2010), the BIA interpreted the legislative history behind the CSPA as being expansive, which is worth reproducing here:

The congressional. intent in enacting the CSPA was to “bring families together” (Rep. Sensenbrenner, 148 Congo Rec. H4989-01, H49991, July 22, 2002) and to “provide relief to children who lose out when INS takes too long to process their adjustment of status applications”(Rep. Gekas, id. at R4992); see also, Rep. Jackson-Lee, “where we can correct situations to bring families together, this is extremely important.’.’ ld. atH4991. In enacting the CSPA, Congress expressed its concern that alien children “through no fault of their own, lose the opportunity to obtain immediate relative status.” H.R. Rep. 107-45, H.R. Rep. No.4 5, I 07th Cong., 1st Sess. 2001, reprinted in 2002 U.S.C.C.A.N. 640, 641 (Apr. 20, 2001). Indeed, the United States Court of Appeals for the Ninth Circuit has held that the CSPA should “be construed so as to provide expansive relief to children of United State citizens and permanent residents.” Padash v. INS,358 F.3d 1161, 1172 (9th Cir. 2004).

However, since Matter of O. Vazquez is a precedential decision, we will need to now live and work with it when dealing with instances under which our clients have “sought to acquire” permanent residency in order to protect their age under the CSPA.

(The author thanks David A. Isaacson for his thoughtful input)