Tag Archive for: Child Status Protection Act

Cyrus Mehta

USCIS’ Change in CSPA Policy Can Help Aged Out Children Who Missed Out During the October 2020 Visa Bulletin EB-3 Advance for India

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By Cyrus D. Mehta and Kaitlyn Box

On September 25, 2024, USCIS announced that it had updated guidance in the USCIS Policy Manual Child Status Protection Act (CSPA) age for noncitizens who demonstrate extraordinary circumstances. The new guidance:

“Clarifies that the CSPA age calculation of an applicant who established extraordinary circumstances and is excused from the ‘sought to acquire’ requirement uses the date that the immigrant visa first became available when the immigrant visa is continuously available for a 1-year period without any intervening visa unavailability; and

Clarifies that under circumstances where the immigrant visa became available and then unavailable, the CSPA age calculation may use the date an immigrant visa first became available if the applicant demonstrates extraordinary circumstances for not applying for adjustment of status before the immigrant visa became unavailable.”

USCIS’ latest guidance builds on policy guidance it previously issued on February 14,  2023, clarifying that it “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”. In August 2023, USCIS issued further policy guidance which:

“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.”

In a previous blog, we discussed USCIS’ 2023 guidance at length. Due to USCIS’ pre- February 14, 2023 guidance, some noncitizen children 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 applied to adjust their status under the February 14, 2023 guidance, they could claim an exception to the one-year “sought to acquire” requirement if the delay in filing was the result extraordinary circumstances.

USCIS’ 2023 guidance left unclear what it would consider to be the date an immigrant visa first became available in the case of retrogression. In the October 2020 visa bulletin, for example, priority dates (which were the Dates for Filing) for many India-born beneficiaries with approved EB-3 I-140 petitions became current, only to retrogress a few months later. In its latest guidance, USCIS addresses this scenario, clarifying that October 1 would be considered the date the visa first became available for CSPA age calculation purposes. The USCIS Policy Manual provides the following hypothetical:

A visa first becomes available to the prospective applicant for accepting and processing their application on October 1, 2020, and the visa remains available to the prospective applicant until December 31, 2020. The visa was only available for 3 months and was therefore not available for a continuous 1-year period. As of January 1, 2021, the prospective applicant cannot apply for adjustment of status because a visa is no longer available.

A visa becomes available again to the prospective applicant on July 1, 2021. The prospective applicant applies for adjustment of status within 1 year, on June 15, 2022. Although USCIS provides the applicant with another 1-year period to seek to acquire because the visa was first available for less than a year, the applicant includes an explanation and evidence demonstrating extraordinary circumstances for not applying for adjustment of status during the first visa availability period between October 1 and December 31, 2020. USCIS determines, as a matter of discretion, that the applicant established extraordinary circumstances and calculates the applicant’s CSPA age using the date the visa first became available, which was October 1, 2020.

On October 1, 2020 when the India EB-3  Dates for Filing advanced to January 1, 2015, thousands of India born beneficiaries in the EB-2 and EB-3 filed I-485 applications along with their derivative family members (those in EB-2 downgraded to EB-3 first). By January 1, 2020 the beneficiaries under the India EB-2 and EB-3 could no longer take advantage of India  EB-3 Dates for Filing. Then, on July 1, 2021 the India EB-3 Final Action Dates advanced again, but only until  January 1, 2013. In October 2020, applicants for adjustment of status would have had no idea that the Dates for Filing would be used to calculate a child’s CSPA age. Thus, some noncitizen children may have missed out on applying for adjustment of status along with their family members in October 2020 because a visa was not available to calculate their CSPA age under USCIS’ prior policy or their CSPA age would have been calculated to be over 21 years old. The advance of the Final Action Dates on July 1, 2021 may not have helped the children if the earlier, more advantageous Dates for Filing on October 1, 2020 were not recognized for protecting the age of the child until the USCIS policy change on February 14, 2023.  Even when the USCIS allowed the filing of I-485 adjustment of status applications on February 1, 2023 under Dates for Filing, the Dates for Filing from February 1, 2023 till September 1, 2024 were not as advanced as the Dates for Filing established under the October 2020 Visa Bulletin.

But on October 2024, the EB-3 India Dates for Filing  has advanced to June 8, 2013, affording some noncitizens who have not been eligible to submit their adjustment of status applications since October 2020 another opportunity to do so. Noncitizen children who missed out on applying in  October 2020 can do so now, asserting that the change in USCIS’ policy is an extraordinary circumstance excusing their failure to file when a visa first became available.

The latest update will  thus help many previously ineligible individuals qualify under the previous 2023 CSPA update. As the EB-3 India Date for Filing continues to advance until it reaches January 1, 2015, which is what it was under the October and November 2020 Visa Bulletins, all children who missed out under those visa bulletins  in 2020 may be able to benefit from this salutary  policy change today and beyond.

(This blog is purely for informational purposes 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

Frequently Asked Questions on Transferring the Underlying Basis of an I-485 application from an I-140 petition under India EB-3 to an I-140 under India EB-2

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Update – January 21, 2022

On January 21, 2022, USCIS released new guidance on requests to transfer the underlying basis of an I-485 to a different employment-based immigrant category based on another Form I-140. The guidance states that USCIS may, in its discretion grant a transfer of underlying basis if the following criteria are met:

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Cyrus Mehta

State Department’s Holiday Gifts: Expanded Interview Waivers and Lenient View on Student  Nonimmigrant Intent

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The State Department has given much needed holiday gifts to ease delays in visa processing brought about by the evisceration of consular operations due to Covid-19.

According to a  December 22, 2021 article in Roll Call, visa applicants in London, Paris and Mexico City, for instance,  must wait about two months for a nonimmigrant visa appointment. In Toronto, the wait for such an appointment is more than a year, while at US Consulates in India, visa appointments are available only on an emergency basis. The situation has become so dire that many in the US who are in status but whose nonimmigrant visas have expired prefer to remain in the US rather than travel abroad to visit family. Those who leave the US must wait for months before they can get a new visa to reenter the US.

I was quoted in the Roll Call article advocating that the 48 month interview waiver policy be extended, and a day later on December 23, 2021, the State Department did precisely this by  indefinitely extending the in-person interview for applicants renewing a visa in the same visa class within 48 months of the prior visa’s expiration. The State Department went even further by waiving the in person interview for many nonimmigrant visa classifications. To summarize: Those who have previously received any type of visa, or have used ESTA to travel to the US, and have never been refused a visa in a way that wasn’t overcome, may be able to obtain H-1B, H-3, H-4, L, O, P, and Q visas without an interview. The expanded interview waiver policy can be found at https://www.state.gov/expanded-interview-waivers-for-certain-nonimmigrant-visa-applicants/.

The expanded interview waiver policy will most certainly provide relief to visa applicants who were otherwise subject to interminable delays in visa processing as a result of limited visa operations due to Covid-19. It will also allow consulates to focus their limited resources on visas that require interviews such as immigrant vias, E visas and those not subject to the expanded interview waiver policy thus shortening the delays. Even if interviews can be waived, “embassies and consulates may still require an in-person interview on a case-by-case basis and dependent upon local conditions.” There is also uncertainty whether people would be able to easily schedule Drop Box appointments as many report that obtaining such appointments in India are hard to get.

The State Department’s expanded interview waiver policy is an example of how the Biden administration can bring about much needed relief to visa applicants through a simple administrative fix. More can be done such as reinstating the ability to obtain a visa stamp in the US itself if the first visa in the same classification  was issued at a US embassy or consulate. This used to be the case until the State Department discontinued stateside visa processing in 2004 as a result of the need to impose  enhanced security measures after the September 11, 2001 attacks. The State Department should also consider conducting video interviews, among other measures suggested by AILA to reopen America,  as that would certainly help in reducing the backlog of immigrant visa applicants waiting to be processed at US consulates around the world.

 

Relaxed Policy in Determining Student Nonimmigrant Intent

In another smart move, the State Department brought back the relaxed policy regarding F-1 and M-1 visa nonimmigrant intent in the Foreign Affairs Manual at https://fam.state.gov/FAM/09FAM/09FAM040205.html. The new policy recognizes that students applying for  F-1 or M-1 visas do not have the same strong ties with their home country as B visa applicants, and they should not be subject to the same vigorous scrutiny of determining whether they have a residence abroad which they have no intention of abandoning and whether they intend to depart the US after they finish their studies. The following extract from 9 FAM 402.5-5(E)(1) is worth noting as its refreshing:

The context of the residence abroad requirement for student visas inherently differs from the context for B visitor visas or other short-term visas.  The statute clearly presupposes that the natural circumstances and conditions of being a student do not disqualify that applicant from obtaining a student visa.  It is natural that the student does not possess ties of property, employment, and continuity of life typical of B visa applicants.  These ties are typically weakly held by student applicants, as the student is often single, unemployed, without property, and is at the stage in life of deciding and developing their plans for the future.  Student visa adjudication is made more complex by the fact that students typically are expected to stay in the United States longer than do many other nonimmigrant visitors, to complete their program of studies.  In these circumstances, it is important to keep in mind that the applicant’s intent is to be adjudicated based on present intent – not on contingencies of what might happen in the future, after a lengthy period of study in the United States.  Therefore, the residence abroad requirement for student applicants should be considered in the context of the usual limited ties that a student would have, and their immediate intent………

While students may not be able to demonstrate the same strong “ties,” present in other classes of applicants, their typical youth often conveys a countervailing major advantage in establishing their bona fides: they are not expected to, or do not necessarily have a long-range plan, and may legitimately not be able to fully explain their plans at the conclusion of their studies.  As most students are relatively young and many reside with parents or guardians, you can consider a student to be maintaining a residence abroad if he or she intends to return to reside with parents or guardians.  Nonetheless, you must be satisfied at the time of application for a visa that the visa applicant possesses the present intent to depart the United States at the conclusion of his or her approved activities.  That this intention is subject to change or even likely to change is not a sufficient reason to deny a visa.  Further, the present intent to depart, does not infer the need to return to the country from which they hold a passport.  It means only that they must intend to leave the United States upon completion of studies.

 

This was the prior policy of the State Department from 2005 until it was modified by the Trump administration in 2017, and the history of this policy is discussed in our prior blog State Department Toughens Standard for Assessing a Foreign Student’s Ties With Home Country. It was first articulated in 2005 after student visa applications were being denied in the aftermath of the September 11 terrorist attacks. The new policy that required examining a student’s nonimmigrant intent more leniently led to fewer student visa refusals. The Trump administration guidance was more restrictive, but student visa applications were not being wholesale rejected although students were more vulnerable to rejections as consular officers could not rely on the same broad guidance as before.    Based on the reaffirmation of the relaxed guidance on December 20, 2021, students applying for F or M visas should not be denied just because they do not have strong ties with the home country, and even though the student must still demonstrate a present intent to depart the US, if this intention is subject to change or even likely to change in the future is not reason enough to refuse the visa.

Notwithstanding the change in State Department policy as expressed in the FAM, the USCIS is unfortunately not bound by the FAM. Many children of parents caught in the employment-based second and third preference backlogs who are aging out are forced to change status from H-4 to F-1, and they too should also be able to benefit from this guidance. It would behoove the USCIS to also follow the State Department policy when one applies for a change of status to F-1 in the US. Nonimmigrant children  should not be penalized for not having ties abroad as they have been here for most of their lives and are being forced to change to F-1or M-1 status just because their parents could not timely receive a green card due to the per country limits in the employment preferences.  They also are unable to claim the benefit of the Child Status Protection Act due to erroneous USCIS policy of not allowing use of the Date for Filing in the Visa Bulletin to freeze the age. The fact that they or their parents have have sought permanent residence should not be held against them when they apply for change of status from H-4 to F-1 in the US. The best way for the USCIS to safeguard against denials of change of status applications  is to recognize that there is an inherent dual intent in all nonimmigrant visas, including F-1 and M-1 visas, as established in Matter of Hosseinpour. In that case, the Board of Immigration Appeals recognized in 1975 that the filing of an application for adjustment of status is not necessarily inconsistent with the maintenance of lawful nonimmigrant status. Matter of Hosseinpour is still good law. The Biden administration must continue to use all possible tools and resources to make life easier for nonimmigrants caught in the backlogs until Congress acts. Recognizing dual intent in nonimmigrant visas would help in ameliorating the plight of aged out children desiring to remain in nonimmigrant status in the US.

 

 

 

 

 

Cyrus Mehta

The Denial of Adjustment of Status Applications of Derivative Children Who Turn 21 Before the Final Action Date in the Visa Bulletin Became Current is Inconsistent with the Child Status Protection Act: Can More Lawsuits Reverse Erroneous USCIS and DOS Policy?

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By Cyrus D. Mehta

Several children who filed I-485 applications as derivatives of their Indian born parents under the October 2020 Visa Bulletin are being denied because they turned 21 years before the Final Action Dates became current. The backlogs for India in the employment-based second and third preferences have already caused untold suffering to beneficiaries of approved I-140 petitions who have to wait for over a decade in the never ending backlogs. When the Dates for Filing in the India EB-3 overtook the India EB-2 under the October 2020 Visa Bulletin thousands of applicants filed I-485 applications for themselves, spouses and minor children.   Hence, the denial of the I-485 applications of their children who turn 21 and are not allowed to claim the protection of the Child Status Protection Act through the Dates for Filing exacerbates the problem for these beneficiaries.

The USCIS Policy Manual, https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-7,  states that only the Final Action Dates (FAD) protects the age of the child under the Child Status Protection Act (CSPA). The State Department too has the same policy of using the FAD for purposes of freezing the age of the child at 9 FAM 502.1-1(D)(4) .

Using the Dates for Filing (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 maintains that only the FAD can protect the age of the child. Thus, if an I-485 application is filed pursuant to a DFF and the child ages out before the FAD becomes available, the child will no longer be protected despite being permitted to file an I-485 application. The I-485 application will get denied, and if the child no longer has an underlying nonimmigrant status, can be put in great jeopardy through the commencement of removal proceedings, and even if removal proceedings are not commenced, can start accruing unlawful presence, which can trigger the 3 and 10 year bars to reentry. If the child filed the I-485 as a derivative with the parent, the parent can get approved for permanent residence when the FAD becomes available while the child’s application gets denied.

I had first advocated in my blog of September 22, 2018 entitled Recipe for Confusion: USCIS Says Only the Final Action Date Protects a Child’s Age under the Child Status Protection Act that the DOF should protect the age of the child under the CSPA rather than the FAD.

There is a clear legal basis to use the filing date to protect the age of a child under the CSPA:

INA 245(a)(3) only allows for the filing of an I-485 adjustment of status application when “an immigrant visa is immediately available.” Yet, I-485 applications can be filed under the DFF rather than the FAD. As explained, the term “immigrant visa is immediately available” has been interpreted more broadly to encompass dates ahead of when a green card becomes available. Under INA 203(h)(1)(A), which codified Section 3 of the CSPA,  the age of the child under 21 is locked on the “date on which an immigrant visa number becomes available…but only if the [child] has sought to acquire the status of an alien lawfully admitted for permanent residency within one year of such availability.” If the child’s age is over 21 years, it can be subtracted by the amount of time the applicable petition was pending. See INA 203(h)(1)(B).

Under INA 245(a)(3), an I-485 application can only be filed when an “immigrant visa is immediately available.”

Therefore, there is no meaningful difference in the verbiage relating to visas availability – “immigrant visa becomes available” and “immigrant visa is immediately available” under INA 203(h)(1)(A) and INA 245(a)(3) respectively. If an adjustment application can be filed based on a Filing Date pursuant to 245(a)(3), then the interpretation regarding visa availability under 203(h)(1)(A) should be consistent, and so the Filing Date ought to freeze the age of the child, and the child may seek to acquire permanent residency within 1 year of visa availability, which can be either the Filing Date or the Final Action Date.

Unfortunately, USCIS disagrees. It justifies its position through the following convoluted explanation in the policy manual that makes no sense: “If an applicant files based on the Dates for Filing chart prior to the date of visa availability according to the Final Action Dates chart, the applicant still will meet the sought to acquire requirement. However, the applicant’s CSPA age calculation is dependent on visa availability according to the Final Action Dates chart. Applicants who file based on the Dates for Filing chart may not ultimately be eligible for CSPA if their calculated CSPA age based on the Final Action Dates chart is 21 or older.” The USCIS recognizes that the sought to acquire requirement is met when an I-485 is filed under the DFF, but only the FAD can freeze the age! This reasoning is inconsistent. If an applicant is allowed to meet the sought to acquire requirement from the DFF, the age should also similarly freeze on the DFF and not the FAD. Based on USCIS’s inconsistent logic, the I-485s of many children will get denied if they aged out before the FAD becomes available.

Neither the USCIS nor the DOS have considered reversing this policy by allowing CSPA protection based on the DFF. Brent Renison  challenged this policy in  Nakka v. USCIS, details of which can be found on his blog at http://www.entrylaw.com/backlogcspalawsuit.  The plaintiffs in this case not only challenged the CSPA policy but also argued that they were denied equal protection under the Fifth Amendment  on the ground that  children of parents who were born in countries such as India and China that have been impacted by the per country limits have a worse outcome than children of parents born in countries that have not been impacted by the per country limits.  Magistrate Judge Youlee Yim You   found on November 30, 2021 that plaintiffs’ claims that the USCIS Policy Manual and Foreign Affairs Manual dictating the use of the FAD to calculate the CSPA age instead of DOF was not “final agency action” and thus could not be reviewed under the Administrative Procedure Act.   Magistrate Judge You also found that plaintiffs could not claim a violation of equal protection under the U.S. constitution for unequal treatment. The Magistrate Judge’s decision is only a recommendation to the district court judge presiding over the case, who is Judge Simon. The Magistrate Judge’s recommendation also does not pass any judgment on the policy itself and whether it is appropriate to rely on the FAD rather than the DOF. It should also be noted that a Magistrate Judge is not an Article III judge and her findings and recommendations will not be binding leave alone persuasive on another court.

Prior to Nakka v. USCIS, there was another challenge in Lin Liu v. Smith, 515 F. Supp. 3d 193, 199 (S.D.N.Y. 2021) to the policy in the FAM requiring the use of the FAD rather than the DOF to protect the CSPA age. In this case too, Judge Koeltl opined that the policy in the FAM is an interpretive rule rather than a legislative rule. The plaintiffs also claimed that the government unlawfully applied the updated Visa Bulletin to the plaintiff retroactively. Here too the court dismissed the claim because the court held that DOS did not implement a new policy, and therefore there was nothing that could have been applied retroactively to the plaintiff. Judge Koeltl made the following observation:

The Visa Bulletin formerly contained one chart that listed the priority dates that were current for visa number availability. DOS updated the Visa Bulletin to include a second chart showing when applicants could file their applications with the NVC. However, the Final Action Date chart, not the Dates for Filing chart, reflects the information previously listed in the one-chart Visa Bulletin. In other words, the Dates for Filing chart is the new feature in the Visa Bulletin, not the Final Action Date chart. Both before and after the modernization of the Visa Bulletin, DOS used the same information to determine when a visa number became available, namely, when a visa number could be issued legally given the limits set by Congress. While DOS did change the format in which it conveyed this information—posting two charts to the Visa Bulletin rather than one chart—the substantive policy did not change. The newly added Dates for Filing chart reflects useful information for when applicants can begin submitting materials to the NVC, but it does not reflect when visa numbers  are legally available. Therefore, the plaintiff has not pleaded adequately that the defendants changed their policy with respect to tethering visa number availability to when the visa number could be issued lawfully given country and category limits to visa allocation.

Lin Liu v. Smith should not be considered the final word on challenging the USCIS CSPA policy. The plaintiff in this case was a derivative child who was outside the US processing her immigrant visa at the US Consulate. Her father had received a visa under the EB-5 but she had been denied the visa because she was not able to demonstrate that her age had been protected under the DOF and not the FAD. However, Judge Koeltl did not deal with the paradox that is applicable to adjustment applicants in the US. Unlike applicants pursing an immigrant visa at a US consulate, they are allowed to file an adjustment application under the DOF because the USCIS has interpreted the DOF to signify that a visa number is immediately available under INA 245(a)(3). However, the child is then deprived of the ability to demonstrate that the visa is immediately available under INA 203(h)(1)(A) for purposes of protecting his or her age.

The setbacks in Nakka v. USCIS and Lin Liu v. Smith ought not discourage a plaintiff from continuing to challenge the inconsistent USCIS policy of allowing an adjustment application to be filed under the DOF but not allowing CSPA age protection. One  involves the findings and recommendations of a non-Article III magistrate judge, which can be overruled by the district judge presiding over the case. The other decision involves a plaintiff who was applying for an immigrant visa at a US Consulate overseas where the DOF does not have any significance. A child applicant whose I-485 was denied because the age could not be protected when the DOF became current should certainly consider seeking judicial review of the decision under the Administrative Procedures Act. Alternatively, if the child is placed in removal proceedings, the child’s I-485 can potentially be renewed in removal proceedings and he or she should be able to argue that neither the USCIS nor DOS policy regarding the FAD protecting the CSPA age is binding on an Immigration Judge. If the IJ affirms a denial, the decision can be appealed to the Board of Immigration Appeals, and if the BIA reaffirms the IJ’s decision, a petition for review can be filed in a Court of Appeals. Hence, there are two avenues for judicial review – through the APA in federal district court or through a petition for review in a court of appeals – that may be able to reverse the erroneous USCIS policy.

 

Cyrus Mehta

CSPA Triumphs in Cuthill v. Blinken: Child of Parent who Naturalizes Should not be Penalized

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By Cyrus D. Mehta

One of the unresolved conundrums in our immigration law is the inability of children of lawful permanent residents to be protected under the Child Status Protection Act (CSPA) when their parents naturalize to US citizenship. The CSPA was enacted to ensure that a child remained under the age of 21 in order to obtain permanent residency with the parent or to stay in a more advantageous family visa category. Sure enough, the CSPA protects the age of a minor child of a who has been sponsored for permanent residency by the parent who is a green card holder even when the child turns 21. Unfortunately, based on erroneous government policy, the goal of the CSPA gets thwarted when the parent of this child naturalizes especially after the child’s biological age is over 21 years.

The Second Circuit in Cuthill v. Blinken recently clarified by holding that a child of a permanent resident whose age is protected under the CSPA ought to be able to continue to claim age protection under the CSPA even when the parent naturalizes to US citizenship.

Section 2 of the CSPA, codified in the Immigration and Nationality Act, protects the age of minor children of US citizens under the age of 21. These minor children are termed Immediate Relatives (IR) under INA 201(b)(2)(A)(i). When a US citizen parent files an I-130 petition for an IR minor child, the child’s age will be frozen under 21 even if there is a delay in the grant of permanent residency and the biological age of the child crosses 21. See INA 202(f)(1).

What happens when a minor child of a permanent resident naturalizes? The child automatically converts from the Family Second (2A) to the IR category. If the biological age of the child is under 21 at the time of the parent’s naturalization, the child’s age pursuant to INA 201(f)(2) freezes. Even if there is a delay in the grant of permanent residency and the child’s biological age is over 21, the child’s statutory age remains frozen under 21.

So far so good. What happens if the child’s biological age under the F2A was over 21 but was protected under the CSPA?  Section 3 of the CSPA protects the age of a child who is the beneficiary of a F2A petition under a special formula. This is how it works:

When the Family 2A petition becomes current under the State Department Visa Bulletin, one has to look at the age of the child on the first day of the month when the F2A becomes current.  If the biological age of the child is over 21 at that time, the age can be subtracted by the amount of time the I-130 petition took to get approved from the date of filing. If this subtraction reduces the age of the child under 21, the child can remain under F2A rather than slide into the less favorable Family 2B preference (F2B), which applies to unmarried sons and daughters of permanent residents. There is clearly a big advantage of remaining under F2A rather than F2B. The F2A is current under the March 2021 Visa Bulletin while the F2B cutoff date in the worldwide category is July 22, 2015.

Although the age of the child is protected under F2A, when the parent naturalizes, the USCIS has taken the position that the age could no longer be protected. Thus, the child gets penalized when the parent became a US citizen. It also leads to the absurd result of inhibiting the parent from naturalizing as the child is better off remaining the child of a lawful permanent resident than a citizen.

These were precisely the facts in Cuthill v. Blinken. On September 29, 2016, when Veronica Cuthill was a permanent resident, she filed an I-130 petition for her daughter, Tatiana Maria Diaz de Junguitu Ullah, who was exactly 19 years 9 months and 6 days old. U.S. Citizenship and Immigration Services (USCIS) took 363 days to process the I-130 petition and approve it.  Although the daughter’s biological age exceeded 21 while she was waiting for the F2A visa, under the CSPA formula the daughter remained in the F2A preference.

On June 25, 2018, while Diaz was waiting for an F2A visa, Cuthill naturalized as a US citizen. At that time Diaz was still statutorily eligible under the F2A visa based on the 363 days of subtraction of processing time from her biological age. Cuthill sought to convert Diaz’s F2A petition for an IR visa, but the State Department instead notified her that Diaz would be placed in the Family First Preference (F1) queue rather than be considered an IR.

The key issue is whether Cuthill’s daughter Diaz could remain in F2A or whether she would convert into F1. If the daughter converted from F2A to F1, it would cause a great setback. Under the March 2021 Visa Bulletin, the cutoff final action date for F1 beneficiaries is August 8, 2015.  The F2A, on the other hand, is current.

INA 201(f)(2) allows a conversion from F2A to IR when the parent naturalizes. This provision is reproduced below:

Age of parent’s naturalization date – In the case of a petition under section 204 initially filed for an alien child’s classification as a family-sponsored immigrant under section 203(a)(2)(A), based on the child’s parent being lawfully admitted to permanent residence, if the petition is later converted, due to the naturalization of the parent, to a petition to classify the alien as an immediate relative under section (b)(2)(A)(i), the determination described in paragraph (1) shall be made using the age on the date of the parent’s naturalization (emphasis added).

The question before the Second Circuit was whether “the age on the date of the parent’s naturalization” is the biological age of the child or the CSPA age of the child? Judge Katzmann writing the decision for the three judge panel, acknowledged that “although no one will ever accuse the CSPA of being reader-friendly” ingeniously found a textual path to hold that it is the CSPA age and not the biological age that counts. Although INA 203(h)(1)(A) (which protects the age of F2A beneficiaries) and INA 201(f)(2) (which protects the age of IRs) are separate sections within the INA, there is a connection between the two as they both reference the definition of a child under INA 101(b)(1).

Under INA 101(b)(1), a child is “an unmarried person under twenty-one years of age.” However, the definition of the child is modified under INA 203(h)(1)(A) for F2A children. As noted, under this provision, a child’s CSPA age under F2A can be reduced to under 21 even if the biological age has exceeded 21 by subtracting the age based on the amount of time the I-130 petition took to get approved. Since INA 201(f)(2) also references INA 203(a)(2)(A), there is a connection between the two sections, and the child’s  age can be interpreted as the CSPA age rather than the biological age when the parent naturalizes, and thus Diaz should convert from F2A to the uncapped IR rather than remain in the backlogged F1.

Judge Katzmann did not end the analysis here, but examined the broader purpose of the CSPA.  “We examine Congress’s purpose in enacting the CSPA, and it is there that we find our clincher: The legislative history shows a clear desire by Congress to fix the age-out problem for all minor beneficiaries, and there is nothing to suggest that Congress intended to exclude beneficiaries like Diaz,” Judge Katzmann wrote.

The government’s argument of insisting that Diaz move from F2A to F1 after her mother Cuthill naturalized ran counter to CSPA’s purpose of to protect child beneficiaries from aging out of their age-dependent visas. While reliance on legislative purpose is often criticized since Congress is a divided body, with respect to the CSPA, Judge Katzmann emphasized that it passed the House by a unanimous 416-0 vote, then passed the Senate by a unanimous vote and again passed the House again by a unanimous vote.  “Penalizing people for becoming citizens runs counter to the entire family-based visa scheme,” Judge Katzmann said.  Finally, Judge Katzmann also did not give Chevron deference to a prior decision of the Board of Immigration Appeals, Matter of Zamora-Molina, 25 I&N Dec. 606, 611 (BIA 2011),  in which the BIA adopted the same flawed interpretation as the government tried  to unsuccessfully advance in Cuthill. When the intent of Congress is clear, a court need not give deference to an agency’s interpretation of the statute.

The Second Circuit in Cuthill v. Blinken follows the  Ninth Circuit’s decision in Tovar v. Sessions that also  held that the naturalization of a parent ought not to adversely impact the protected age of the child under the CSPA. Both these courts of appeals have ruled correctly and consistently with the purpose of the CSPA. Rather than appealing to the Supreme Court, it is about time that the  DHS and the State Department under President Biden issue a policy to ensure that the holdings of the Second and Ninth Circuits be uniformly implemented  – at the USCIS and State Department – for all children whose age is protected under F2A and whose parents subsequently naturalize.

If these decisions are not implemented uniformly, parents of children whose age is protected under the F2A will be inhibited from naturalizing to US citizenship. If they go ahead and naturalize, children will be involuntarily converted into the F1 category, which is hopelessly backlogged. Such a result could not have been the intent of Congress when it spoke with one voice to pass the CSPA,  and two courts of appeals, the Second Circuit and the Ninth Circuit, have correctly held that  INA 203(h)(1) and INA 201(f)(2), when read together,  unambiguously  provide a pathway for children to gain permanent residency as immediate relatives even when their parents become US citizens.

 

 

Cyrus Mehta

Proposal for the Biden Administration: Using the Dual Date Visa Bulletin to Allow the Maximum Number of Adjustment of Status Filings

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As a result of the existence of the per country limits, those born in India and China have been drastically affected by backlogs in the employment-based green card categories. Each country is only entitled to 7 percent of the total allocation of visas under each preference. Thus, a country like Iceland with only about 330,000 people has the same allocation as India or China with populations of more than a billion people. For instance, in the employment-based second preference (EB-2), those born in India have to wait for decades, and one study estimates the wait time to be 150 years!

It would be ideal for Congress to eliminate the per country limits and even add more visas to each preference category. Until Congress is able to act, it would be easy for the Biden administration to provide even greater relief through executive action. One easy fix is to advance the dates in the State Department’s Visa Bulletin so that many more backlogged beneficiaries of approved petitions can apply for adjustment of status and get  ameliorative relief. Other fixes could include allowing beneficiaries of petitions overseas to enter the US on parole, and protecting more derivative children from  aging out under the Child Status Protection Act.

The State Department’s October 2020 Visa Bulletin was thus refreshing. It advanced the Dates for Filing (DFF) for the India employment-based third preference (EB-3) from February 1, 2010 to January 1, 2015. This rapid movement allowed tens of thousands of beneficiaries of I-140 petitions who were languishing in the backlogs and born in India to file I-485 adjustment of status applications. Although an I-485 application filed pursuant to a current DFF does not confer permanent residence, only the Final Action Dates  (FAD) can,  the DFF provides a number of significant benefits, such as allowing the applicant to “port” to a different job or employer in the same or similar occupational classification after 180 days pursuant to INA 204(j), obtain an Employment Authorization Document (EAD) that enables them to work in the United States, and request advance parole or travel permission. Even derivative family members can also get EADs and travel permission upon filing an I-485 application.

The January 1, 2015 DFF in the November 2020 Visa Bulletin continue to remain at January 1, 2015 date for the India EB-3, thus enabling many more in the backlogs to file I-485 applications and take advantage of job portability. While the advance to January 1, 2015 was a positive development, there is a legal basis to advance the DFF even further, perhaps to as close as current. The Biden administration should seriously consider this proposal.

INA 245(a)(3) allows for the filing of an adjustment of status application when the visa is “immediately available” to the applicant. 8 CFR 245.1(g)(1) links visa availability to the State Department’s monthly Visa Bulletin. Pursuant to this regulation, an I-485 application can only be submitted “if the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current).” The term “immediately available” in INA 245(a)(3) has never been defined, except as in 8 CFR 245.1(g)(1) by “a priority date on the waiting list which is earlier than the date shown in Bulletin” or if the date in the Bulletin is current for that category.

The State Department has historically never advanced priority dates based on certitude that a visa would actually become available. There have been many instances when applicants have filed an I-485 application in a particular month, only to later find that the dates have retrogressed. A good example is the April 2012 Visa Bulletin, when the EB-2 cut-off dates for India and China were May 1, 2010. In the very next May 2012 Visa Bulletin a month later, the EB-2 cut-off dates for India and China retrogressed to August 15, 2007. If the State Department was absolutely certain that applicants born in India and China who filed in April 2012 would receive their green cards, it would not have needed to retrogress dates back to August 15, 2007.  Indeed, those EB-2 applicants who filed their I-485 applications in April 2012 are still waiting and have yet to receive their green cards even as of today! Fortunately, under the current November 2020 Visa Bulletin, the beneficiary of an I-140 petition under EB-2 may “downgrade” by filing an I-140 under EB-3 and a concurrent I-485 application.  Another example is when the State Department announced that the July 2007 Visa Bulletin for EB-2 and EB-3 would become current. Hundreds of thousands filed during that period (which actually was the extended period from July 17, 2007 to August 17, 2007). It was obvious that these applicants would not receive their green cards during that time frame. The State Department then retrogressed the EB dates substantially the following month, and those who filed under the India EB-3 in July-August 2007 waited for over a decade before they became eligible for green cards.

These two examples, among many, go to show that “immediately available” in INA 245(a)(3), according to the State Department, have never meant that visas were actually available to be issued to applicants as soon as they filed. Rather, it has always been based on a notion of visa availability at some point of time in the future.

Under the dual filing dates system first introduced by the State Department in October 2015, USCIS acknowledges that availability of visas is based on an estimate of available visas for the fiscal year rather than immediate availability:

When we determine there are more immigrant visas available for the fiscal year than there are known applicants, you may use the Dates for Filing Applications chart to determine when to file an adjustment of status application with USCIS. Otherwise, you must use the Application Final Action Dates chart to determine when to file an adjustment of status application with USCIS.

See https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-and-priority-dates

 

Taking this to its logical extreme, visa availability for establishing the DFF may be based on just one visa being saved in the backlogged preference category in the year, such as the India EB-3, like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving Day is pardoned by the President and not consumed, similarly one visa can also be left intact rather than used by the foreign national beneficiary.   So long as there is one visa kept available, it would provide the legal basis for an I-485 filing under a DFF, and this would be consistent with INA 245(a)(3) as well as 8 CFR 245.1(g)(1). DFF could potentially advance and become current, thus allowing hundreds of thousands of beneficiaries of I-140 petitions to file I-485 applications.

This same logic can be extended to beneficiaries of family-based I-130 petitions.

8 CFR 245.1(g)(1) could be amended (shown in bold) to expand the definition of visa availability:

An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 [if] the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current) (“Final Action Date”). An immigrant visa is also considered available for submission of the I-485 application based on a provisional priority date (“‘Dates for Filing”) without reference to the Final Action Date. No provisional submission can be undertaken absent prior approval of the visa petition and only if all visas in the preference category have not been exhausted in the fiscal year. Final adjudication only occurs when there is a current Final Action Date. An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.

 

Parole of Beneficiaries of Approved I-130 and I-140 petitions

With respect to beneficiaries of approved I-130 and I-140 petitions who are outside the US, they too can be paroled into the US upon their DFF becoming current. This would provide fairness to beneficiaries of approved petition who are within or outside the US.

However, due to a quirk in the law, beneficiaries of I-130 petitions should be able to file I-485 applications upon being paroled in the US since parole is considered a lawful status for purpose of filing an I-485 application. See 8 CFR 245.1(d)(1)(v). On the other hand, beneficiaries of I-140 petitions will not be eligible to file an I-485 application, even if paroled, since INA 245(c)(7) requires one who is adjusting based on an employment-based petition to be in a lawful nonimmigrant status. Parole, unfortunately, is not considered a nonimmigrant status.  Such employment-based beneficiaries may still be able to depart the US for consular processing of their immigrant visa once their FAD become current.

This proposal can be modelled on the Haitian Family Reunification Parole Program that allows certain beneficiaries of I-130 petitions from Haiti to be paroled into the US pursuant to INA 212(d)(5). See https://www.uscis.gov/humanitarian/humanitarian-parole/the-haitian-family-reunification-parole-hfrp-program. (The Filipino World War II Veterans Program also has a liberal parole policy for direct and derivative beneficiaries of I-130 petitions, https://www.uscis.gov/humanitarian/humanitarian-parole/filipino-world-war-ii-veterans-parole-program).  Once the beneficiaries of I-130 petitions are paroled into the US, they can also apply for an EAD, and adjust status once their priority date becomes current. The HFRPP concept can be extended to beneficiaries of all I-130 and I-140 petitions, and parole eligibility can trigger when the filing date is current for each petition. Beneficiaries of I-130 petitions may file adjustment of status applications, as under the HFRPP, once they are paroled into the US. On the other hand, Beneficiaries of I-140 petitions, due to the limitation in INA 245(c)(7) would have to proceed overseas for consular processing once the FAD become current.

 

Protecting the Age of Child Under the Filing Date

The USCIS Policy Manual, https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-7,  states that only the FAD protects the age of the child under the Child Status Protection Act (CSPA). 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. Thus, if an I-485 application is filed pursuant to a DFF and the child ages out before the final date becomes available, the child will no longer be protected despite being permitted to file an I-485 application. The I-485 application will get denied, and if the child no longer has an underlying nonimmigrant status, can be put in great jeopardy through the commencement of removal proceedings, and even if removal proceedings are not commenced, can start accruing unlawful presence, which can trigger the 3 and 10 year bars to reentry. If the child filed the I-485 as a derivative with the parent, the parent can get approved for permanent residence when the final date becomes available while the child’s application gets denied.

There is a clear legal basis to use the filing date to protect the age of a child under the CSPA:

INA 245(a)(3) only allows for the filing of an I-485 adjustment of status application when “an immigrant visa is immediately available.” Yet, I-485 applications can be filed under the DFF rather than the FAD. As explained, the term “immigrant visa is immediately available” has been interpreted more broadly to encompass dates ahead of when a green card becomes available. Under INA 203(h)(1)(A), which codified Section 3 of the CSPA,  the age of the child under 21 is locked on the “date on which an immigrant visa number becomes available…but only if the [child] has sought to acquire the status of an alien lawfully admitted for permanent residency within one year of such availability.” If the child’s age is over 21 years, it can be subtracted by the amount of time the applicable petition was pending. See INA 203(h)(1)(B).

Under INA 245(a)(3), an I-485 application can only be filed when an “immigrant visa is immediately available.”

Therefore, there is no meaningful difference in the verbiage relating to visas availability – “immigrant visa becomes available” and “immigrant visa is immediately available” under INA 203(h)(1)(A) and INA 245(a)(3) respectively. If an adjustment application can be filed based on a Filing Date pursuant to 245(a)(3), then the interpretation regarding visa availability under 203(h)(1)(A) should be consistent, and so the Filing Date ought to freeze the age of the child, and the child may seek to acquire permanent residency within 1 year of visa availability, which can be either the Filing Date or the Final Action Date.

Unfortunately, USCIS disagrees. It justifies its position through the following convoluted explanation that makes no sense: “If an applicant files based on the filing date chart prior to the date of visa availability according to the final date chart, USCIS considers the applicant to have met the sought to acquire requirement. However, the applicant’s CSPA age calculation is dependent on visa availability according to the final date chart. Applicants who file based on the filing date chart may not ultimately be eligible for CSPA if their calculated CSPA age based on the final dates chart is 21 or older.” The USCIS recognizes that the sought to acquire requirement is met when an I-485 is filed under the DFF, but only the FAD can freeze the age! This reasoning is inconsistent. If an applicant is allowed to meet the sought to acquire requirement from the DFF, the age should also similarly freeze on the DFF and not the FAD. Based on USCIS’s inconsistent logic, the I-485s of many children will get denied if they aged out before the FAD becomes available.

USCIS must reverse this policy by allowing CSPA protection based on the DFF.

References

https://www.scribd.com/document/45650253/The-Tyranny-of-Priority-Dates-by-Gary-Endelman-and-Cyrus-D-Mehta-3-25-10

https://blog.cyrusmehta.com/2010/03/286.html

https://blog.cyrusmehta.com/2015/10/when-is-visa-immediately-available-for.html

https://blog.cyrusmehta.com/2018/09/recipe-for-confusion-uscis-says-only-the-final-action-date-in-visa-bulletin-protects-a-childs-age-under-the-child-status-protection-act.html

https://blog.cyrusmehta.com/2020/09/downgrading-from-eb-2-to-eb-3-under-the-october-2020-visa-bulletin.html

 

Cyrus Mehta

Downgrading from EB-2 to EB-3 under the October 2020 Visa Bulletin

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By Cyrus D. Mehta and Kaitlyn Box*

On September 24, 2020, the Department of State released the October 2020 Visa Bulletin. Importantly, the Filing Date for an EB-3 from India has advanced to January 1, 2015 from February 1, 2010 in the September 2020 Visa Bulletin, while the Filing Date for an EB-1 from India advanced to September 1, 2020 from July 1, 2018.  By contrast the Filing Date for EB-2 India advanced to only May 15, 2011 from August 15, 2009.

Significantly, however, the USCIS issued guidance on the same day  that the Filing Date, rather than the Final Action Date, applies to employment-based I-485 adjustment of status applications. Historically, USCIS has been very reluctant to allow applicants to use the Filing Date, only doing so in very limited instances. The last time USCIS used the Filing Date for most visa categories was in March 2020. In 2019, USCIS used the Filing Date only four times – in January, October, November, and December. Otherwise, applicants must use the Final Action Date to determine when to submit their I-485. According to earlier guidance from USCIS, applicants may use the Filing Date to determine when to submit an I-485 when the USCIS determines that there are more immigrants visas available for the fiscal year than there are applicants. The Filing Date only allows the filing of an I-485 application when permitted by the USCIS. The Final Action Date determines when lawful permanent residence is issued.  USCIS’s decision to apply the Filing Date comes as a surprise under the October 2020 Visa Bulletin, albeit a pleasant one, given the agency’s previous unwillingness to allow applicants to use the Filing Date.

Since USCIS will accept I-485 filing, a new I-140 will need to be filed for an individual who, for example, wants to downgrade from EB-2 to EB-3. Since the EB-3 Filing Date has significantly overtaken the EB-2 Filing Date, a beneficiary of an approved EB-2 petition may want to re-file, or downgrade to EB-3.  If the beneficiary qualified under EB-2, the beneficiary should be able to qualify for EB-3, and the appropriate “professional”, or “skilled worker” will need to be checked on the form. The individual may still rely on an old labor certification when filing the I-140 under EB-3. The I-140 can be filed concurrently with the I-485, so the I-140 need not be approved at the time the I-485 is filed with USCIS.

There is nothing in the law or regulations precluding the existence of two I-140 petitions, one under EB-2, and the other under EB-3. Still, a beneficiary who wishes to downgrade from EB-2 to EB-3 must seek legal advice. Some may be of the view,  and they have some support in the Neufeld Memo of June 1, 2007 that the new “downgraded” I-140 under EB-3 should be checked as an amendment rather than as a separate petition. The Neufeld Memo suggests that a new I-140 petition filed after a previously approved I-140 was filed within 180 days of the grant of the labor certification should be filed as an amendment where a  new visa classification is being sought.  But doing that would nullify the earlier EB-2 petition, and this may not be so desirable in case the EB-2 dates overtake the EB-3 at some point in the future. If that were to happen, then a new amendment of the EB-3 would need to be filed for upgrading to EB-2  On the other hand, 8 CFR 204.5(e)(1), which was last amended in 2017,  contemplates the existence of multiple approved petitions on behalf of a single beneficiary even if filed by the same employer, and the beneficiary is entitled to capture the earliest priority date when a subsequently filed petition is approved. This regulation does not preclude the filing of an I-140 petition subsequent to the use of the labor certification through a previously approved labor certification  Therefore, the prevalent view is in favor of filing a standalone I-140 to downgrade to EB-3 is preferable to filing it as an amendment. See Multiple I-140s, Priority Date Retention, and the 2013 China EB-2/EB-3 Anomaly, AILA Liason (Dec. 16, 2013), available at: https://www.aila.org/infonet/uscis-multiple-i-140s-priority-date-retention. However, this is not to assume  that USCIS will not insist that the I-140 should have been checked off as an amendment and may deny the EB-3 petition.

Although an I-485 filed pursuant to a current Filing Date does not confer permanent residence, the  I-485 filing confers a number of significant benefits, such as allowing the applicant to “port” to a different job or employer in the same or similar occupational classification after 180 days pursuant to INA 204(j), obtain an Employment Authorization Document (EAD) that enables them to work in the United States, and request advance parole or travel permission. Note, however, that USCIS’ use of the Filing Date will not help those who are waiting for a visa interview abroad, although the National Visa Center (NVC) will initiate the case and obtain documents before the Final Action Date becomes current.

Other complications arise under the Child Status Protection Act (CSPA), which “freezes” the age of applicants under the age 21 who would otherwise age out before being approved for LPR status due to lengthy USCIS backlogs. USCIS has made clear that only Final Action Dates, and not Filing Dates may be used to freeze a child’s age. Thus, an applicant who files an I-485 based on a Filing Date should be aware that their child will no longer be protected if the child ages out before the Final Action Date becomes available. The child’s I-485 application will be denied, and she can even be put into removal proceedings if she has no nonimmigrant status. We discussed this predicament at greater length, and argued that there is a significant legal basis to use the Filing Date to protect the age of a child under the CSPA in an earlier blog.

Additionally, a small group of EB-2 beneficiaries from India who already have pending I-485 applications (as they filed I-485s in 2012 and then the EB-2 India dates retrogressed) may decide to “downgrade” to an EB-3 from an EB-2, given the more advanced Filing and Final Action Dates for an EB-3. Individuals who find themselves in this situation will need to file a new I-140, which may not protect a child from aging out under the CSPA. CSPA applies only the “applicable” petition, which most likely means the old EB-2 I-140 petition. Individuals who want to downgrade from EB-2 to EB-3 because of the more favorable dates should be aware that their children who were protected under the CSPA under a prior I-140 may not longer receive that protection when a new I-140 is filed if the child is now over 21 years old. Please refer to our earlier blog post for a more in-depth discussion of the CSPA.

EB-1 beneficiaries from India are also in luck, and so long as the EB-1 I-140 was filed on or before September 1, 2020, a concurrent I-485 may be filed. In this case too, legal advice should be taken since the I-485 with all its attendant benefits may not survive if the pending I-140 is denied.

While the movement in the Filing Dates will give relief to many, they are quixotic and ephemeral. The EB-3 India dates have overtaken the EB-2 dates. At one point, it was always assumed that EB-2 would be ahead of EB-3. But there might be a flipflop as more people are lured into filing under EB-3, and then both EB-2 and EB-3 will be hopelessly backlogged.  But those who managed to file I-485 applications will be permitted to apply for employment authorization and can port to new jobs in same or similar occupations. While the green card may still be far away, at least I-485 applicants will be better off than being on a 12th year H-1B extension as they will have more mobility and their spouses and children will also be able to work. Ideally, the immigration system ought to be reformed by eliminating per country limits, and better still, infusing the EB preferences with more visa numbers.  For that to happen, Congress has to aligned and in today’s polarized environment, this too seems unlikely to happen until at least after the elections.

(Kaitlyn Box graduated with a JD degree from Penn State Law School and works as a Law Clerk at Cyrus D. Mehta & Partners PLLC)

Cyrus Mehta

Filing an EB-1 as a Multinational Manager After the Approval of an EB-2 for a Backlogged Indian Beneficiary

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It requires skill and creativity to assist Indians caught in the employment based backlogs to find ways speed up the process or ameliorative solutions. The India employment-based second preference (EB-2) and employment-based third preference (EB-3) dates have barely moved for years, and the prospects for a beneficiary of an I-140 petition born in India for obtaining permanent residence anytime soon are bleak.

One strategy is to file an I-140 petition in the employment-based first preference (EB-1) for an individual who is stuck in the EB-2.  Under the State Department November 2919 Visa Bulletin, the Final Action Date for EB-2 India is May 13, 2009. The Final Action Date for EB-1 India is January 1, 2015. Since it is possible to capture the earlier priority date of the EB-2, a successful filing under EB-1 can assist the person to escape the backlog and gain permanent residency more quickly.

Take for instance Sunil Kumar who already has an approved I-140 under EB-2 with a priority date of January 1, 2012. His employer, ACB Corp. sponsored him through the labor certification process as a Systems Analyst. ABC Corp. wishes to promote Sunil to the position of Vice President, Cloud Projects. Under the new position, Sunil will be required to manage all cloud based projects of ABC Corp’s Fortune 500 corporate clients. Sunil will oversee subordinate managers and professional employees, mainly software developers and systems analysts, in this new position of Vice President, Cloud Projects.

Before moving ahead, an important caveat: Sunil and his fact pattern is a made up for purposes of illustrating a legal strategy. Any resemblance to actual persons, entities or actual events is purely coincidental.

Prior to coming to the US, Sunil was employed with ABC Pvt. Ltd. in India, a wholly owned subsidiary of ABC Corp., in the position of Systems Analyst from January 1, 2008 to December 31, 2010. He entered the US in H-1B status on January 1, 2011 to work for ABC Corp as a Systems Analyst.

In order to sponsor an employee under INA 203(b)(1)(C) as a multinational manager or executive for permanent residency (EB-1C), not only must the proposed position in the US be managerial or executive in nature, but the prior employment in the qualifying entity in India should have also been managerial or executive in nature for one year in the past three years, which as will be explained below, can be tolled in certain circumstances. While Sunil was employed as a Systems Analyst at the qualifying entity in India with no obvious managerial duties, towards the end of his employment in India, from October 1, 2009 till December 31, 2010, due to his talent and acumen, Sunil was assigned to manage important migration projects on behalf of ABC Pvt. Ltd. clients in India even though he was not formally employed as a manager. While the title of his position remained Systems Analyst, Sunil managed other professional employees with respect to various complex migration projects that he successfully completed on behalf of his employer.

While Sunil was in H-1B status and performed his duties in an exemplary manner, ABC Corp decided to sponsor Sunil for permanent residency for the position of Systems Analyst.  A PERM labor certification was filed on Sunil’s behalf on January 1, 2012, and after it got approved, an I-140 petition under EB-2 was also filed and easily got approved. The PERM labor certification that supported the I-140 under EB-2 required a Bachelor of Computer Science degree plus five years of progressively responsible experience as a systems analyst. The five years of experience described in Column K of the PERM labor certification for Sunial included managing technology migration projects for large corporate clients. The 15 months of Sunil’s employment at ABC Pvt Ltd. in India from October 1, 2009 to December 31, 2010 could have been viewed as managerial, but an I-140 under EB-1C was not contemplated in 2012 since the position of Systems Analyst in the US was not managerial. Moreover, it was not clear then whether the duties in India during the last fifteen months of his employment would be considered managerial as he was not formally employed as a manager. It was also not conceivable then that the EB-2 would languish in the backlogs until 2019 and beyond.  At the present time, however, ABC Corp. is very keen on promoting Sunil to the position of Vice President, Cloud Projects, which is clearly a managerial position.

Sunil potentially qualifies under EB-1C based on the proposed position of Vice President in the US and his prior managerial experience in India from October 1, 2009 to December 31, 2010. Although the qualifying experience at the foreign entity must be for one year in the past 3 years, the “one of three year” requirement may be met even if the person is in the United States for more than three years if s/he is working for the same employer, affiliate, or subsidiary in the United States and was employed for at least one of the last three by company abroad before entering in valid nonimmigrant status. 8 C.F.R. §204.5(j)(3)(i)(B).  Sunil has been in valid H-1B status from January 1, 2011 till today for ABC Corp, which is a wholly owned subsidiary of ABC Pvt. Ltd in India. Although the six year limitation under H-1B has long since gone, he has been able to obtain 3 year extensions pursuant to § 104(c) of the American Competitiveness in the 21st Century Act by virtue of his approved I-140 under the India EB-2, which has not yet become current.  Thus, the experience that Sunil obtained from October 1, 2009 to December 31, 2010 would potentially be qualifying experience for classification as a multinational executive or manager under EB-1C. Although Sunil was admittedly a first level supervisor,  INA § 101(a)(44)(A)(iv) states that “[a] managerial employee must have authority over day-to-day operations beyond the level normally vested in a first-line supervisor, unless the supervised employees are professionals.” Since Sunil managed professional employees, a case can be made that he was engaged in qualifying managerial role.

Sunil also has a daughter, Sujata, who is going to turn 21 on January 1, 2020. Pursuant to the current I-140 under EB-2, there is no hope that Sunil’s daughter will be able to protect her age under the Child Status Protection Act, codified at INA §203(h). If ABC Corp. files a new I-140 under EB-1C, however, even if Suneeta crosses 21 on January 1, 2020, once the EB-1C is approved and captures the EB-2 priority date of January 1, 2012 (and the priority date of January 1, 2012 for  EB-1 India continues to remain current), any time between the filing of the I-140 petition and the approval of the I-140 petition can be subtracted from Sujata’s age pursuant to INA §203(h)(1)(A)&(B). As long as the I-140 was filed prior to her 21st birthday, even if it gets approved after her 21st birthday, that time can be subtracted from her age and artificially bring the age under 21. Sunil may also file an I-485 application for adjustment of status concurrent with the I-140 petition under EB-1C, and corresponding I-485 applications can be filed by his daughter, Sujata, and his spouse, Suneeta. The USCIS allows such an I-485 filing concurrently with an I-140 udder EB-1C if it is clearly explained that the EB-2 priority date  will be captured upon the approval of the EB-1C.  While Suneeta has work authorization under the H-4 EAD rule,  8 CFR § 214.2(h)(9)(iv), she is nervous that she will not be able to continue to have it as the Trump administration has declared its intention to rescind the rule. Suneeta will be able to obtain an EAD based on her I-485 pursuant to 8 CFR § 274a (12)(c)(9). Unlike the renewal of an H-4 EAD, an EAD obtained based through I-485 gets automatically renewed for 180 days provided the renewal is filed prior to the expiration of the initial EAD.

If the I-140 under EB-1 gets approved, the January 1, 2012 priority date of the EB-2 will transfer to the EB-1, and Sunil, Suneeta and Sujata will get permanent residency once their I-485 applications are approved.

This strategy assumes that like Sunil, a backlogged beneficiary under EB-2, had qualifying managerial experience with a related foreign entity prior to being employed in the US, and the experience indicated in the PERM labor certification is consistent with the qualifying experience that will be indicated in support of the I-140 under EB-1C. The USCIS also strictly scrutinizes the managerial role of the beneficiary at both the qualifying foreign entity and the proposed managerial role in the US. Many similar cases have been arbitrarily denied even where a strong case was made demonstrating the managerial role at both entities.  Still, those whose facts are similar to Sunil can try to file a new I-140 under EB-1. Even if the beneficiary does not have prior qualifying managerial experience at the related foreign entity, if he or she has attained recognition in cloud related projects and can qualify as a person of extraordinary ability under INA 203(b)(1)(A) (EB-1A), an I-140 petition can be attempted  under EB-1A. An EB-1A I-140 filed as a person of extraordinary ability is also very difficult to obtain, and the USCIS routinely denies such petitions. Yet another more safe approach is to transfer the employee to the foreign related entity in an executive or managerial capacity for one year, and then file an EB-1C after the completion of one year of qualifying employment. However, this strategy will not help if there is a child who is imminently aging out and uprooting a family for one year from the US is less than ideal.

Still, when one’s back is against the wall, and there is a child who is aging out, it is worth trying every legitimate measure permissible under the law. My good colleague Brent Renison has also suggested creative solutions for surviving spouses and children who will age out.  If there were no country cap, Indians would not be so badly affected and Sunil with a priority date of January 1, 2012 under EB-2 would have by now had a green card, and also likely become a US citizen, and so would his wife and daughter. Until country caps are eliminated through the passage of S386, or S2603, although S386 has a significantly better chance of passing than S2603, Indians will continue to languish in the EB backlogs. A lucky few may be able to escape the backlogs by filing EB-1 petitions, but not everybody will be eligible to do so.

(This blog is for informational purposes and is not intended to constitute legal advice).

Cyrus Mehta

Illogical Situation for Family-Sponsored Second Preference Spouses and Children under the July 2019 Visa Bulletin

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The Department of State Visa Bulletin is eagerly anticipated each month. It tells aspiring immigrants their place in the green card queue, and whether one has moved ahead, remained static or gone backwards. There are many people stuck in the green card backlogs, some stretching to several decades, hoping each month to move ahead in the queue. The person who sets the dates each month is Mr. Charles (“Charlie”) Oppenheim, Chief of the U.S. Department of State (DOS) Visa Control and Reporting Division based on projected demand and the fixed supply of visas within each category.

The July 2019 Visa Bulletin to the pleasant surprise of many indicates that the Family-Sponsored Second Preference,  F2A,   will become current for all countries of the world on July 1, 2019. This category applies to spouses and minor children of lawful permanent residents. The wait in this category has been nearly three years till now. In the current June 2019 Visa Bulletin, the Final Action Date for the F2A preference is July 15, 2017. This means that those whose I-130 petitions were filed on or before June 15, 2017 by the spouse or parent are today eligible for an immigrant visa or to file an I-485 application for adjustment of status.  On July 1, 2019, the Final Action Date under F2A becomes current, which means that a visa number is immediately available regardless of when the I-130 petition was filed, subject obviously to processing times for the adjudication of the I-130. Spouses and children who are in the US can potentially apply for an I-485 adjustment of status concurrently with an I-130 petition. Those who are overseas will be scheduled for an immigrant visa interview, provided that they have become documentarily qualified, and be eligible for an immigrant visa.

The Visa Bulletin has two charts – Chart A, the Final Action Date, and Chart B, the Filing Date. Although the Final Action Date for the F2A is current in the July 2019 Visa Bulletin, the Filing Date is March 8, 2019. Surprisingly, with respect to family sponsored filings, the USCIS has indicated in the Adjustment of Status Filing Charts from the Visa Bulletin that applicants in the US can only use the Filing Date and not the Final Action Date to file an I-485 application. This makes no sense as the Filing Date should always be ahead of the Final Action Date. In the case of the F2A for July 2019, it is the other way around. The Final Action Date is ahead, by virtue of being current, while the Filing Date is behind at March 8, 2019.

The DOS introduced the two charts in the monthly visa bulletin for the very first time on October 1, 2015.  The Filing Date 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 and the filing of visa applications if they are outside the country. The Final Action Date is the date when permanent residency (the green card) 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. Similarly, for those who are outside the United States and processing for an immigrant visa overseas, the Filing Date allows applicants to submit the DS-260 immigrant visa application and become documentarily qualified prior to the issuance of the immigrant visa when the Final Date becomes available. The DOS had historically issued a qualifying date prior to the visa becoming available so that applicants could begin processing their visas. This informal qualifying date system morphed into a more formal Filing Date in the Visa Bulletin from October 1, 2015 onwards. As a result, the USCIS also got involved in the administering of the Visa Bulletin with respect to the filing of I-485 adjustment applications. Even if the Filing Date becomes available, it is the USCIS that determines whether applicants can file an I-485 application or not each month.

For July 2019, the USCIS has absurdly indicated that the Filing Date of March 2019 must be used for filing I-485 adjustment applications under the F2A category rather than the Final Action Date, which is current. It is unclear whether this is intentional or a mistake. If it is a mistake, it is hoped that the USCIS will correct itself and allow the filing of an I-485 under the F2A on July 1, 2019 under the Final Action Date rather than the Filing Date.

If this is intentional, then the USCIS is plain wrong. It must allow applicants to file I-485 applications under the Final Action Date and not the Filing Date.  Alternatively, Mr. Oppenheim should move the Filing Date to Current like the Final Action Date. The Filing Date must always be equal to the Final Action Date or ahead of it. If the DOS corrects the Filing Date, it can prevent the USCIS from authorizing the filing of I-485 adjustment of status applications under the Filing Date rather than the Final Action Date.

The USCIS also contradicts itself with respect to the position it has taken on the date that freezes the age of a minor child under the Child Status Protection Act. On August 24, 2018,  the USCIS Policy Manual  definitively confirmed that the Final Action Date protects the age of the child rather than the Filing Date. Under INA 203(h)(1)(A), which codified Section 3 of the CSPA,  the age of the child under 21 is locked on the “date on which an immigrant visa number becomes available…but only if the [child] has sought to acquire the status of an alien lawfully admitted for permanent residency within one year of such availability.” If the child’s age is over 21 years, it can be subtracted by the amount of time the applicable petition was pending. See INA 203(h)(1)(B). While the USCIS considers a child’s age to be frozen on the first day of the month when the Final Action Date becomes current rather than the Filing Date, under the July 2019 Visa Bulletin, the USCIS is preventing a child from seeking to acquire permanent residency within one year of visa availability provided the I-130 petition was filed after March 8, 2019. Under the Final Action Date, the visa number becomes available on July 1, 2019, but the USCIS is saying that only those who are beneficiaries of I-130 petitions filed on or before March 8, 2019 can file I-485 adjustment of status application. Thus, one who has filed an I-130 petition after March 8, 2019 cannot file an I-485 application, and is prevented from seeking to acquire permanent residency by filing an I-485 application.

In the event that the F2A retrogresses in the coming months, and the USCIS sticks to its position that only the Fling Date can be used to file an I-485 application, then children who will age out,  but protected under the CSPA, would be deprived of the benefit of seeking to apply for permanent residency within one year of visa availability on July 1, 2019. Although under the CSPA the child’s age is frozen only when both the visa becomes available and the I-130 petition is approved, an I-130 and I-485 filed concurrently (or an I-485 filed while an I-130 is pending), may serve to protect the age of the child even if the I-130 gets approved after the date retrogresses.  This happened during the July 2017 Visa Bulletin, which suddenly became current, for EB-2 and EB-3 beneficiaries. A concurrently filed I-140 and I-485 served to protect the age of the child even upon the retrogression of cut-off dates after August 17, 2007 so long as the I-140 petition got approved.  Thus, if there is retrogression in the F2A after July 2019, the USCIS would have deprived the ability of children who will age out from the F2A if they could not file the I-485 application concurrently with the I-130 petition.

There may be ways to still seek CSPA protection notwithstanding USCIS’s illogical position. For those who already have independently filed I-130 petitions after March 8. 2019, an attempt should be make to file an I-485 application,  and even if it gets rejected, it  would demonstrate that the applicant sought to acquire permanent residency within one year of visa availability. Those who already have approved I-130 petitions may file Form I-824, and even though the filing of this form triggers consular action, it demonstrates that the child sought to acquire permanent residency within one year of July 1, 2019. On the other hand, a child who will age out on August 1, 2019 and is not yet the beneficiary of an I-130 petition, will not be able to file a concurrent I-130 and I-148 in July 2019 and will never be able to seek the protection of the CSPA.  Such a child may wish to seek review of the USCIS’s action in federal court.

Rather than agonizing about how illogical all this is, it is hoped that the USCIS will allow the filing of I-485 applications based on the Final Action Date by July 1, 2018, or that Mr. Oppenheim moves the Filing Date to current like the Final Action Date.

Update June 27, 2019: USCIS has fixed the issue. The Adjustment of Status Filing Charts from the Visa Bulletin now says:

For Family-Sponsored Filings:
In the F2A category, there is a cutoff date on the Dates for Filing chart.  However, the category is “current” on the Final Action Dates chart.  This means that applicants in the F2A category may file using the Final Action Dates chart for July 2019.

For all the other family-based preference categories, you must use the Dates for Filing chart in the Department of State Visa Bulletin for July 2019.

Hopefully, my blog raised awareness about the inconsistency.  I thank USCIS for realizing its error and fixing its chart prior to July 1, 2019.

 

 

 

Cyrus Mehta

Recipe for Confusion: USCIS Says Only the Final Action Date in Visa Bulletin Protects a Child’s Age Under the Child Status Protection Act

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The Child Status Protection Act is one of the most complex pieces of immigration legislation. Passed in 2002, the CSPA protects the age of children who would otherwise not qualify as children if they turned 21. The lack of any regulation has made the legislation even more confusing especially in light of more recent developments such as the introduction of the  dual chart State Department Visa Bulletin in October 2015.

On August 24, 2018, however, the USCIS Policy Manual consolidated the guidance on the CSPA that the USCIS has developed over the years, and definitively confirmed that the Final Action Date in the State Department Visa Bulletin  protects the age of the child rather than the Filing Date. There are other significant interpretative changes too, but this blog will focus on the change relating to the  interplay between the dual chart Visa Bulletin and the CSPA.

On October 1, 2015, DOS introduced two charts in the monthly visa bulletin – Chart A – Final Action Dates and Chart B – Filing Dates.  The Filing Date 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 and the filing of visa applications if they are outside the country. The Final Action Date is the date when permanent residency (the green card) 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. Similarly for those who are outside the United States and processing for an immigrant visa overseas, the Filing Date allows applicants to submit the DS-260 immigrant visa application and become documentarily qualified prior to the issuance of the immigrant visa when the Final Date becomes available. The DOS has historically issued a qualifying date prior to the visa becoming available so that applicants could begin processing their visas. This informal qualifying dates system morphed into a more formal Filing Date in the Visa Bulletin from October 1, 2015 onwards. As a result, the USCIS also got involved in the administering of the Visa Bulletin with respect to the filing of I-485 adjustment applications. Even if the Filing Date becomes available, it is the USCIS that determines whether applicants can file an I-485 application or not each month.

The Filing Date has become practically useless for employment-based I-485 applicants since USCIS only allowed I-485 applications to be filed pursuant to the Filing Date in October 2015 and November 2015. Since December 2015, USCIS has never allowed employment-based adjustment applicants to file their I-485s under the Filing Date. On the other hand, the USCIS allows family-based beneficiaries of I-130 petitions to file I-485 applications under the Filing Date, and has continued to so in the September 2018 and the forthcoming October 2018 Visa Bulletins.

Using the Filing Date to protect the age of the child who is nearing the age of 21 is clearly more advantageous – the Filing Date becomes available sooner than the Final Action Date. As of August 24, 2018, the USCIS has made clear through the Policy Manual that only the Final Action Date can be used to determine and freeze the age of a child. Thus, if an I-485 application is filed pursuant to a Filing Date and the child ages out before the Final Action Date becomes available, the child will no longer be protected despite being permitted to file an I-485 application. The I-485 application will get denied, and if the child no longer has an underlying nonimmigrant status, can be put in great jeopardy through the commencement of removal proceedings, and even if removal proceedings are not commenced, can start accruing unlawful presence, which can trigger the 3 and 10 year bars to reentry. If the child filed the I-485 as a derivative with the parent, the parent can get approved for permanent residence when the Final Action Date becomes available while the child’s application gets denied.

In order to avoid such an absurd and cruel outcome, I have consistently advocated that there is a clear legal basis to use the Filing Date to protect the age of a child under the CSPA. While the USCIS has not agreed, I continue to advocate that affected children can challenge USCIS’ interpretation in federal court. There may also be a basis to challenge this interpretation before an Immigration Judge and the Board of Immigration Appeals, and further before a Court of Appeals, if the applicant is placed in removal proceedings upon the denial of the I-485 application. Immigration Judges are not bound by the USCIS Policy Manual.  The USCIS Policy Manual is not law, although applicants should follow the Final Action Date for making the CSPA age calculation unless they have no choice but to challenge this interpretation.

Here is how one can argue the case for CSPA protection under the Filing Date: INA 245(a)(3) only allows for the filing of an I-485 adjustment of status application when “an immigrant visa is immediately available.” Yet, I-485 applications, at least family-based under the current Visa Bulletin, can be filed under the Filing Date rather than the Final Action Date. This suggests that the term “immigrant visa is immediately available” has been interpreted more broadly to encompass dates ahead of when a green card becomes available. Indeed, the Visa Bulletin describes the Filing Date as  “dates for filing visa applications within a timeframe justifying immediate action in the application process.” Under this permissible interpretation, I-485 applications can be filed pursuant to  INA 245(a)(3) under the  Filing Date. There is a difference, for example, in the F2A worldwide Final Action Date in the September 2018 Visa Bulletin, which is July 22, 2016, and the F2A worldwide Filing Date, which is December 1, 2017. Thus, under the Filing Date, those with later priority dates, December 1, 2017,  can file I-485 applications even though those with an earlier priority date, July 22, 2016,  are actually eligible to receive the green card. Still, applicants who file I-485s under both the Filing Date and the Final Action Date must satisfy INA 245(a)(3), which only permits the filing of an I-485 application when “an immigrant visa is immediately available.”

Under INA 203(h)(1)(A), which codified Section 3 of the CSPA,  the age of the child under 21 is locked on the “date on which an immigrant visa number becomes available…but only if the [child] has sought to acquire the status of an alien lawfully admitted for permanent residency within one year of such availability.” If the child’s age is over 21 years, it can be subtracted by the amount of time the applicable petition was pending. See INA 203(h)(1)(B).

Under INA 245(a)(3), an I-485 application can only be filed when an  “immigrant visa is immediately available.”

Therefore, there is no meaningful difference in the verbiage relating to visas availability – “immigrant visa becomes available” and “immigrant visa is immediately available” under INA 203(h)(1)(A) and INA 245(a)(3) respectively. If an adjustment application can be filed based on a Filing Date pursuant to 245(a)(3), then the interpretation regarding visa availability under 203(h)(1)(A) should be consistent, and so the Filing Date ought to freeze the age of the child, and the child may seek to acquire permanent residency within 1 year of visa availability, which can be either the Filing Date or the Final Action Date.

Unfortunately, USCIS disagrees. It justifies its position through the following convoluted explanation that makes no sense: “If an applicant files based on the Dates for Filing chart prior to the date of visa availability according to the Final Action Dates chart, USCIS considers the applicant to have met the sought to acquire requirement. However, the applicant’s CSPA age calculation is dependent on visa availability according to the Final Action Dates chart. Applicants who file based on the Dates for Filing chart may not ultimately be eligible for CSPA if their calculated CSPA age based on the Final Action Dates chart is 21 or older.” The USCIS recognizes that the sought to acquire requirement is met when an I-485 is filed under the Filing Date, but only the Final Action Date can freeze the age! This reasoning is inconsistent. If an applicant is allowed to meet the sought to acquire requirement from the Filing Date, the age should also similarly freeze on the Filing Date and not the Final Action Date. Now, based  on USCIS’s inconsistent logic, the I-485s of many children will get denied if they aged out before the Final Action Date became available. These children must not hesitate to challenge USCIS’s interpretation. Government policy manuals are not the law, and when there is an erroneous interpretation, they ought to be challenged so that USCIS is forced to make the appropriate correction.