Tag Archive for: Child Status Protection Act

Cyrus Mehta

High Skilled Worker Rule – Is There Scope For Porting On A Labor Certification?

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By Cyrus D. Mehta & David A. Isaacson

Our firm provided selected comments to the  proposed DHS rule entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers.” These comments are based primarily on three recent blogs:

Including Early Adjustment Filing in Proposed DHS Rule Impacting High-Skilled Workers Would Give Big Boost to Delayed Green Card Applicants

Preserving H-1B Extension For Spouse And Freezing Age Of Child In Rule Impacting High-Skilled Nonimmigrant Workers

The Opportunity to Be Heard: Why New DHS Proposed Regulations Regarding I-140 Petitions Should Incorporate and Expand Upon the Rule of Mantena v. Johnson.

Our comments focused on areas that others may not have commented on, and may require the DHS and even the DOL to propose supplemental rules. However, if our comments are considered, they will greatly improve the proposed rule.

The centerpiece of the rule is to grant work authorization to beneficiaries of approved I-140 petitions who are caught in the crushing employment-based backlogs. The requirement of demonstrating compelling circumstances has disappointed beneficiaries, along with further restrictions relating to the renewal of the work authorization. We do hope that the DHS removes these restrictions so that deserving beneficiaries are able to easily obtain work authorization.

It would also be highly desirable for beneficiaries of such approved I-140 petitions to exercise   job portability, and not be required to re-start the labor certification process through a new employer, even though the proposed rule allows for the retention of the old priority date under certain circumstances. Recognizing that INA 204(j) requires a pending I-485 adjustment application for 180 days, and thus the DHS may not be receptive to arguments that may justify portability, we proposed that DHS also consider promulgating a rule that would recognize the ability of applicants to file early adjustment applications based on a filing date that would be far ahead of the final action date in the State Department Visa Bulletin, even if theoretically one visa is only available in a preference category. The existence of a pending I-485 application would allow for true job mobility pursuant to INA 204(j).  If DHS does not accept our proposal for an early adjustment filing, we have proposed in our comment the following innovation, which we reproduce below:

“Modifying Labor Certification Rules to Provide Greater Flexibility to Beneficiaries of Approved Labor Certifications

Finally, we take this opportunity to suggest that USCIS propose to another Executive Branch department, specifically, the Department of Labor (“DOL”), some regulatory changes which would mesh well with those that USCIS has proposed and assist in accomplishing the goals of the President’s initiative.

First, we propose that the DOL should formalize a policy, previously suggested in some case law of the Board of Alien Labor Certification Appeals (“BALCA”), whereby an employer who wishes to offer an alien prospective employee a position which in substance has already been the subject of an approved labor certification, even for another employer, does not need to go through the entire labor certification process all over again.

In Matter of Law Offices of Jean-Pierre Karnos, 2003-INA-18, 2004 WL 1278081 (Bd. Alien Lab. Cert. App. 2004) [hereafter referred to as Matter of Karnos], BALCA held that if “there is a bona fide job opportunity which remains the same, despite the change in employers,” then “[t]he absence of a contractual agreement between [the employers] does not negate the fact that a bona fide job opportunity exists” and thus “the change in employers, when an adequate test of the labor market has been performed and when the position remains the same, does not offend the policies of labor certification.” Matter of Karnos, 2004 WL 1278081 at *2-*3. This is, we would submit, consistent with the text and purpose of INA § 212(a)(5)(A), which focuses on the effect on U.S. workers of the alien filling a particular position, rather than the identity of the employer who wishes to hire the alien to fill that position.

In Matter of Karnos, the lawyer who had operated the law office that was the original employer, Jean-Pierre Karnos, had died before a final decision was made on the application for labor certification. Matter of Karnos, 2004 WL 1278081 at *1. James G. Roche, Esq., continued to run a similar law firm under the name of the Law Offices of James Roche, but could not demonstrate that he had any formal contractual relationship with Mr. Karnos so as to assume ownership of Mr. Karnos’s firm. Id. at *1-2. The initial Certifying Officer within the Department of Labor denied labor certification based on the difference in employers, as BALCA explained:

[T]he CO stated that Mr. Roche was “unable to provide that he and Jean-Pierre Karnos had a written contractual or inheritance agreement.” Therefore, the CO found that Mr. Roche was a separate employer and should not be entitled to the application signed by another party. The CO denied certification on the ground that two “distinctly different employers” were involved and there was no agreement to “attest to the legality of this condition.”

Matter of Karnos, 2004 WL 1278081 at *2.

In his request for review by BALCA, Mr. Roche clarified that while he could not establish a formal relationship with the late Mr. Karnos, “he was offering the same position of accountant, under the same terms and conditions, including the same wage, set forth in the original application.” Id. BALCA agreed that this was sufficient:

In general, a new employer must file a new application unless the same job opportunity and the same area of intended employment are preserved. International Contractors, Inc. [and Technical Programming Services, Inc., 1989-INA-278 (Bd. Alien Lab. Cert. App. 1990)]; Germania Club, Inc., 1994-INA-391 (May 25, 1995). When the employer has clearly demonstrated that the job opportunity, including the wage paid, remains the same such that there is still a bona fide job opportunity, a new application is not required.

In this case, there is a bona fide job opportunity and an adequate test of the labor market has been performed. The new Employer, Mr. Roche, has indicated that the duties of the job remain the same and that the salary is the same. The same job opportunity has been preserved. The absence of a contractual agreement between Mr. Karnos and Mr. Roche does not negate the fact that a bona fide job opportunity exists with Mr. Roche as the employer. The new Employer has clearly demonstrated that there is a bona fide job opportunity which remains the same, despite the change in employers.

Therefore, in light of the particular factual circumstances presented by this case, we hold that the change in employers, when an adequate test of the labor market has been performed and when the position remains the same, does not offend the policies of labor certification. The former Employer attempted to recruit a U.S. worker for the position and the new Employer has certified that the position remains the same as that originally petitioned for, in the same area of employment. In such circumstances, labor certification should not be denied solely on the change in employers. Thus, the CO improperly denied certification.

Matter of Karnos, 2004 WL 1278081 at *2-*3.

DOL should amend the governing regulations to make explicit, and expand upon, the holding of Matter of Karnos. Where a new employer wishes to sponsor an employee for a position that remains the same, and is in the same area of employment, a new application for labor certification should not be required.

We also propose that DOL should add to Schedule A, at 20 CFR 656.5, a new “Group III” comprising persons who will be employed in a same or similar occupation to one for which they already have an approved labor certification from a different employer. Under such circumstances, it is reasonable for the Department of Labor to conclude on a categorical basis that there are not sufficient U.S. workers who are able, willing, qualified and available, and that the wages of United States workers similarly employed will not be adversely affected, because a similar determination has already been made in the process of granting the previously approved labor certification.  New employers should under such circumstances therefore be able to process their labor certification through USCIS pursuant to 20 CFR 656.15.  At the very least, even if DOL is not willing to have Schedule III cover such same or similar occupations on a nationwide basis, it should cover instances in which the alien has an approved labor certification for a same or similar occupation, and the area of intended employment for the position covered by the Schedule III filing is within normal commuting distance of the area of intended employment for the position covered by the previously approved labor certification.”

 

Cyrus Mehta

Preserving H-1B Extension For Spouse And Freezing Age Of Child In Rule Impacting High-Skilled Nonimmigrant Workers

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The purpose of this blog is to draw attention to two little know legal concepts, which must either be preserved or introduced through the proposed rule entitled Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers”. They are concepts worthy of promotion since they would greatly benefit delayed green card applicants, especially with respect to extending H-1B status beyond the six years and freezing the age of a child under the Child Status Protection Act under a new I-140 petition. While there are many other proposals in need of repair and improvement, I focus on these two since I have dwelt on them with passion in past blogs, here and here, and now is a time to advocate for their inclusion in the proposed rule.

This rule when finalized will provide relief to skilled immigrants who are presently on nonimmigrant visas and are caught in the crushing employment-based backlogs. The centerpiece of this rule would allow beneficiaries of approved employment based immigration visa petitions, known as I-140 petitions, to apply for an employment authorization document (EAD), although it has disappointed many by setting stringent criteria, which would deter most from taking advantage of it. This has been addressed in my prior blog – Allowing Early Adjustment Filing in Proposed Rule Impacting Skilled Workers Would Give Big Boost to Delayed Green Card Applicants. Those who are disappointed must continue to forcefully advocate so that EADs can be granted to deserving beneficiaries of approved I-140 petitions less restrictively in the final rule.

Preserving the Ability Of H-1B To Seek H-1B Extension Based On Other Spouse’s Labor Certification

The American Competitiveness in the 21st Century Act (AC 21) allows for an extension of H-1B visa status beyond the statutory time limitation of six years for those who cannot obtain a green card within this period. There are two pivotal provisions. AC 21 §106(a) allows for one year H-1B extensions beyond the sixth year if a labor certification application or I-140 petition was filed at least one year prior to the last day of the alien’s authorized admission in H-1B status. Under second provision, AC 21 §104(c), the beneficiary of an approved I-140 petition can seek an H-1B extension for three additional years if it can be demonstrated that he or she is eligible for permanent residence but for the per country limitation.

The proposed rule seeks to provide this benefit only to the principal beneficiary and not to the spouse, assuming both are in H-1B status. While it is true that the other spouse who is not the direct beneficiary of a labor certification or I-140 petition can change status from H-1B to H-4 status, and seek an EAD as an H-4 spouse under the recently promulgated rule that allows for this, experience has shown that this can be a long process. Changing from H-1B to H-4 status can take several months, and there would also be additional delays in receiving the EAD. Even if the H-1B spouse proceeds overseas to apply for an H-4 visa, it would take at least 90 days before the H-4 spouse can obtain the EAD after being admitted into the US in that status. It is thus more convenient for the spouse who is also in H-1B status to continue to extend that H-1B status, and not disrupt his or her employment.

The rationale for not allowing a spouse who is also on an H-1B visa to use the other spouse’s labor certification or I-140 petition is not very convincing. The preamble discusses AC 21 §104(c), which limits H-1B nonimmigrant status beyond the six-years to the ‘beneficiary of a petition filed under section 204(a) of [the INA] for a preference status under paragraph (1), (2), or (3) of section 203(b) [of the INA].” According to DHS’s logic, INA §203(b) applies only to principal beneficiaries, but not to derivative beneficiaries who are separately addressed in INA §203(d). The preamble also emphasizes that §104(c) refers to “the beneficiary” in the singular. The DHS uses this same logic to deprive the other H-1B spouse from extending H-1B status one year at a time based on the other spouse’s labor certification or I-140 petition filed 365 days prior under AC 21 106(a).

Unlike AC 21 104(c), which the DHS focused on, there is a clearer basis in AC 21 106(a) to allow an H-1B spouse to seek a one year extension of H-1B status beyond six years when the other spouse is the beneficiary of an appropriately filed labor certification.

On November 2, 2002, the 21st Century Department of Justice Appropriations Authorization Act (“21st Century DOJ Appropriations Act”) took effect and liberalized the provisions of AC21 that enabled nonimmigrants present in the United States in H-1B status to obtain one-year extensions beyond the normal sixth-year limitation. See Pub. L. No. 107–273, 116 Stat. 1758 (2002). The new amendments enacted by the 21st Century DOJ Appropriations Act liberalized AC21 § 106(a) and now permits an H-1B visa holder to extend her status beyond the sixth year if:

  1. 365 days or more have passed since the filing of any application for labor certification that is required or used by the alien to obtain status under the Immigration and Nationality Act (“INA”) § 203(b), 
  2. 365 days or more have passed since the filing of an Employment-based immigrant petition under INA § 203(b). 

Previously, AC21 § 106(a) only permitted one-year extensions beyond the sixth-year limitation if the H-1B nonimmigrant was the beneficiary of a labor certification or an I-140 petition, and 365 days or more had passed since the filing of a labor certification application or the I-140 petition. See Pub. L. No. 106-313, 114 Stat. 1251 (2000). The term “any application for labor certification” was absent in the original version of AC 21§106(a). Even under this more restrictive version of AC21 § 106(a), the Service applied a more liberal interpretation, permitting H-1B aliens to obtain one-year extensions beyond the normal sixth-year limitation where there was no nexus between the previously filed and pending labor certification application or I-140 petition and the H-1B nonimmigrant’s current employment. This is now fortunately preserved in the proposed rule, but there is no reason to also not allow a spouse to use “any” application for labor certification, which could be the labor certification filed on behalf of the other spouse.

With regards to the absence of INA §203(d) in AC21 §104(c) or §106(a), does this suggest that that only the principal spouse can immigrate under INA §203(b) and the derivative needs INA §203(d)? But INA 203(d) states that the spouse is “entitled to the same status, and the same order of consideration provided in the respective subsection (INA § 203(a), § 203(b), or § 203(c)), if accompanying or following to join, the spouse or parent. Thus, the derivative spouse still immigrates under INA 203(b).” INA § 203(d), which was introduced by the Immigration Act of 1990 (“IMMACT90”), is essentially superfluous and only confirms that a derivative immigrates with the principal. See Pub. L. No. 101-649, 104 Stat. 4978 (1990). Prior to IMMACT90, there was no predecessor to INA § 203(d), and yet spouses immigrated with the principal. Thus, it is clear that a spouse does not immigrate via INA § 203(d), and the purpose of this provision is merely to confirm that a spouse is given the same order of consideration as the principal under INA § 203(b).

In conclusion, there is a very good argument under AC 21 §106(a) that the H-1B spouse can use “any” labor certification, which includes the labor certification filed on behalf of the other spouse, to seek an additional one year H-1B extension. Furthermore, there is also an equally good argument, applicable under both AC 21 §106(a) and §104(c), that the exclusion of the mention of INA §203(d) is not fatal as a derivative spouse also ultimately immigrates under INA §203(b). The fact that “beneficiary” is mentioned in the singular and not in the plural should also not undermine support for the notion that any beneficiary, either as principal or spouse, can qualify for an AC 21 H-1B extension who is capable of immigrating under a labor certification or I-140 petition, or both. DHS must interpret existing ameliorative provisions in AC 21 that Congress has specifically passed to relieve the hardships caused by crushing quota backlogs in a way that reflects the intention behind the law.

On a separate note, there is also no need to penalize an H-1B worker from availing from an AC 21 H-1B extension if s/he fails to file an adjustment application or make an application for an immigrant visa within 1 year of availability. If the rule allows an H-1B extension based on a labor certification or I-140 petition filed by another employer, it may take some time for the new employer to obtain another labor certification and I-140 approval. The exception provided in the rule for failure to file within 1 year should include this circumstance, where the applicant is waiting for another labor certification and I-140 petition through a new employer.

Freezing The Age Of A Child Under The Child Status Protection Act Even Through A New Petition

 One of the bright spots in the proposed rule at 8 CFR §204.5 is to clarify that even if an I-140 petition is revoked by the employer, the priority date of that I-140 petition can still be used if a new employer files another I-140 petition. Even if the earlier I-140 petition is not revoked, and the same employer wishes to upgrade from an EB-3 I-140 to an EB-2 I-140 petition, the priority date of the earlier EB-3 I-140 petition can still be retained. The ability to retain an old priority date always existed in the rule, but the proposed rule also clarifies that retention of the priority date is further permissible when an employer revokes a petition or goes out of business.

The key issue is whether the new I-140 petition would be able to continue to protect the age of the child under the CSPA even if it is filed after the child has turned 21. We assume that the prior I-140 petition froze the age of the child under the CSPA age protection formula because it was filed prior to the child turning 21, the date became current, and an I-485 adjustment application was filed within one year of visa availability. There are many beneficiaries under this scenario, including the class of 2007 adjustment applicants whose priority dates under the India EB-3 have not become current after they retrogressed in August 2007.Alternative, we assume that when the priority date of the earlier I-140 becomes current, it would still potentially be able to protect the age of the child. At issue is whether the new I-140 petition continues to protect the age of the child.

The CSPA, as codified in INA 203(h), applies to the “applicable” petition, and without further clarification it may be difficult to bootstrap the new I-140 onto the “applicable” prior I-140 petition, which is no longer being utilized but was filed before the child’s 21st birthday. There is room to interpret the term “applicable” petition to include the new I-140 petition, especially since the new I-140 petition recaptured the priority date of the old I-140 petition. This should be made explicit in the final rule where the new I-140 petition is considered the “applicable” petition for purposes of protecting the age of the child under the old petition. If an old I-140 petition revoked by an employer can be used for purposes of preserving the priority date in a new petition, port to another employer or seek an AC 21 H-1B extension, it should also be preserved for preserving the age of a child under the CSPA. Similarly, even if the I-140 petition is not revoked, a new I-140 petition, filed either by the same or new employer should be able to freeze the age of the child if the old I-140 petition was able to do so.

Conclusion

 It is important that everyone impacted by this rule should strive to improve it by submitting comments. We will continue to blog on this rule with the goal of providing stakeholders with good ideas for comments. While there is no guarantee that the DHS will incorporate all good and worthy ideas, it is important to continue to float such ideas as they can never really die, and have the potential to be included in other rules or even subsequently through legislation. The deadline for submitting comments to this proposed rule is February 29, 2016.

 

Cyrus Mehta

Winter Blues: Freezing the Age of a Child Under the December 2015 Visa Bulletin

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Although the State Department Visa Bulletin announced dual dates on September 9, 2015 – a filing date and a final action date – effective October 1 2015, the government has yet to clarify how these dates protect a derivative child from aging out (turning 21) under the Child Status Protection Act. If a derivative child turns 21, the child cannot automatically obtain permanent residency status with the parent, and thus the CSPA freezes the age of a child below 21.

The new filing date in the Visa Bulletin 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 will be the date when green cards can actually be issued.  The filing date thus allows for the early submission of adjustment applications prior to the date when green cards actually become available. Similarly for those who are outside the United States and processing for an immigrant visa overseas, the filing date should allow applicants to submit the DS 260 immigrant visa application.

Prior to the October 2015 Visa Bulletin, the cut-off date was based on the government’s ability to issue a green card during that month.  While there has been no official guidance, and many of the practice advisories issued make scant reference, it is important that we advocate that the age of the child also be protected under the CSPA at the time that the filing date becomes current for the applicant. A child ceases to be considered a child upon turning 21, and can no longer immigrate as a derivative with the parent, especially when the parent is likely to be caught in the backlogs. It is thus important that the CSPA is made applicable to protect the child’s age at the time of the earlier filing date. This will also promote legal consistency and harmony with respect to the broader definition of visa availability in the new visa bulletin. [Readers are cautioned not to expect that this will happen, and the whole purpose of this blog is to advocate that children get CSPA protection under the new visa bulletin.]

Notwithstanding the abrupt retrogression of the filing dates on September 25, 2015 that were first announced on September 9, 2015, thus impeding the ability of thousands who were ready to file adjustment applications on October 1, 2015,  the dual date system still exists, albeit not as advantageously as before. The Visa Bulletin has been further undermined after the USCIS was given authority to determine filing dates for purposes of filing adjustment applications. One has to now also refer to http://www.uscis.gov/visabulletininfo to determine whether adjustment applicants can use the filing dates each month established by the State Department in the Visa Bulletin. For the first two months in 2015, October and November,  the USCIS indicated that the filing dates could be used, but for December 2015, the USCIS abruptly announced without explanation that only the final action date could be used for filing I-485 applications. This has caused further confusion regarding the applicability of the CSPA.

As background, INA 245(a)(3) only allows for the filing of an I-485 adjustment of status application when “an immigrant visa is immediately available.” Visa availability will no longer be defined by when visas are actually available. The Visa Bulletin in its new reincarnation now views it more broadly as “dates for filing visa applications within a time frame justifying immediate action in the application process.” The USCIS similarly views visa availability opaquely as “eligible applicants” who “are able to take one of the final steps in the process of becoming U.S. permanent residents.”  These new interpretations provide more flexibility for the State Department to move the filing date even further, and make it closer to current. Thus, the government’s argument that it made a mistake when announcing the more advantageous filing dates on September 9, 2015 in the lawsuit, Mehta v. DOL, makes no sense.  Indeed, visa availability ought to be based on just one visa being saved in the backlogged preference category, 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 consumed by the foreign national beneficiary.  The new way of interpreting visa availability makes it possible to file an adjustment of status application earlier than before, along with all the accompanying benefits that arise, such as job portability under INA 204(j), work authorization for the principal and derivative family members and travel permission. Similarly, CSPA protection should also be made available to children who may age out at the time of the earlier filing date so as to maximize the chance for children to obtain their green cards with the parent.

I strongly advocate that if there is now a broader interpretation of visa availability for purpose of filing an I-485 adjustment application at the filing date, this same filing date should lock in the CSPA age too. Otherwise the whole scheme collapses like a house of cards if there is no consistency. If there must be visa availability to file an I-485 under INA 245(a)(3) in order to enjoy 204(j) portability, it makes sense to use the same new interpretation of visa availability to lock in the child’s age at the filing date.  Imagine filing an I-485 for a minor at the time of the filing date who is not protected under the CSPA, and once s/he ages out, is no longer eligible to even be an adjustment applicant, and has to leave the US while the parents can continue as adjustment applicants.

There’s also no point in providing the earlier filing date in the new visa bulletin for immigrant visa applicants overseas, otherwise they get no tangible benefit, except to be able to lock in the child’s age earlier at the time of the filing date under the CSPA.

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 under the new interpretation of visa availability pursuant to 245(a)(3), then the interpretation regarding visa availability under 203(h)(1)(A) should be consistent.

Even though the filing date may not be available for submitting an adjustment application under December 1, 2015, according to the USCIS, this should not preclude an applicant from claiming the earlier filing date for purposes of freezing the age of the child below 21 years. In order to meet all the conditions of freezing the age under the CSPA, the child should have also sought to acquire lawful permanent residency within one year of visa availability, which is arguably the filing date. However, what if the USCIS does not allow usage of the filing date for I-485 applications for more than a year? Does this mean that the child’s age cannot be protected under the CSPA? One possibility is to seek permanent residency through consular processing, and file Form I-824, which enables consular processing of an approved I-130 or I-140 petition. The filing of Form I-824 would constitute evidence of seeking to acquire permanent residency within one year of visa availability, which is when the filing date became current. Even if the parent and child are unable to file an adjustment application, or even be able to obtain a green card imminently, filing the I-824 at least clearly fulfills the condition of seeking to acquire permanent residency within one year of visa availability.  Once the USCIS allows usage of the filing date, an adjustment application can subsequently be filed, and the filing of the I-824 application to initiate consular processing would constitute solid evidence of the applicant seeking permanent residency within one year of visa availability.

Until there is more clarity, it makes sense to take advantage of the earlier filing date to protect the age of the child, and then seek to acquire permanent residency within one year of the filing date becoming current. Of course, given that there is no harmony between the DOS and the USCIS with respect to availability of filing dates, it may be possible to also claim the final action date for purposes of protecting the age of the child, and then seeking to acquire permanent residency within one year of the final action date becoming current. I had suggested in my earlier blog that permanent residency should only be sought within one year of the filing date becoming current so that the concept of visa availability be applied consistently. However, given that the USCIS has not permitted the filing of I-485 applications in the month of December 2015, although the State Department has released a filing date, a child applicant should take advantage of either the filing date or the final action date for purposes of CSPA protection.

There has undoubtedly been much confusion caused by the new Visa Bulletin that took effect on October 1, 2015. While there is an ongoing legal fight to challenge the government’s abrupt reversal of the filing dates on September 25, 2015, we must also force the government to agree with the interpretation that the CSPA should lock in a child’s age based on the new filing date. In the months when the USCIS does not permit adjustment submissions based on the filing date, applicants should still be able to lock in the CSPA age based on the filing date in the Visa Bulletin, as well as based on the final action date, whichever is more advantageous. It is really surprising that the government has said nothing thus far, and hopefully, this blog should prompt a discussion.

Cyrus Mehta

Save the Children Under the New Visa Bulletin

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The changes  made to the priority date system in the October 2015 Visa Bulletin have been positive and will provide much relief to beneficiaries of visas petitions caught in the employment and family-based backlogs. There will be two dates for the very first time: a filing date and a final action date. The filing date will allow the filing of adjustment of status applications if eligible foreign nationals are in the United States and the filing of visa applications if they are outside the country. The final action date will be the date when green cards can actually be issued.

The October 2015 Visa Bulletin will thus allow the filing of applications prior to the date when green cards actually become available. Until now, the cut-off date was based on when visas were actually available.  While there has been no official guidance, and many of the practice advisories issued make scant reference, it is important that we advocate that the age of the child also be protected under the Child Status Protection Act (CSPA) at the time that the filing date becomes current for the applicant. A child ceases to be considered a child upon turning 21, and can no longer immigrate as a derivative with the parent, especially when the parent is likely to be caught in the backlogs. It is thus important that the CSPA is made applicable to protect the child’s age at the time of the earlier filing date. This will also promote legal consistency and harmony with respect to the broader definition of visa availability in the new visa bulletin. Readers are cautioned not to expect that this will happen, and the whole purpose of this blog is to advocate that children get CSPA protection under the new visa bulletin.

I celebrated the broadening of the interpretation of visa availability in my last blog,  Godot Has Arrived: Early Adjustment Of Status Applications Possible Under The October 15, 2015 Visa Bulletin,  and was also happy to note that these changes were consistent with what Gary Endelman (who is now an Immigration Judge) and I have propounded since 2010 in The Tyranny of Priority Dates. As a background, INA 245(a)(3) only allows for the filing of an I-485 adjustment of status application when “an immigrant visa is immediately available.” Visa availability will no longer be defined by when visas are actually available. The October Visa Bulletin now views it more broadly as “dates for filing visa applications within a time frame justifying immediate action in the application process.” The USCIS similarly views visa availability opaquely as “eligible applicants” who “are able to take one of the final steps in the process of becoming U.S. permanent residents.”  These new interpretations provide more flexibility for the State Department to move the filing date even further, and make it closer to current. The new way of interpreting visa availability makes it possible to file an adjustment of status application earlier than before, along with all the accompanying benefits that arise, such as job portability under INA 204(j), work authorization for the principal and derivative family members and travel permission. Similarly, CSPA protection should also be made available to children who may age out at the time of the earlier filing date so as to maximize the chance for children to obtain their green cards with the parent.

Before the government finalizes all the details, I strongly advocate that if there is now a broader interpretation of visa availability for purpose of filing an I-485 adjustment application at the filing date, this same filing date should lock in the CSPA age too. Otherwise the whole scheme collapses like a house of cards if there is no consistency. If there must be visa availability to file an I-485 under INA 245(a)(3) in order to enjoy 204(j) portability, it makes sense to use the same new interpretation of visa availability to lock in the child’s age at the filing date.  Imagine filing an I-485 for a minor at the time of the filing date who is not protected under the CSPA, and once s/he ages out, is no longer eligible to even be an adjustment applicant, and has to leave the US while the parents can continue as adjustment applicants.

There’s also no point in providing the earlier filing date in the new visa bulletin for immigrant visa applicants overseas, otherwise they get no tangible benefit, except to be able to lock in the child’s age earlier at the time of the filing date under the CSPA. (There is potential for advocating that beneficiaries who have filed visa applications overseas under the earlier filing date be paroled into the US under INA 212(d)(5) while they wait for the final acceptance date to materialize, but I will reserve this for a future blog).

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 under the new interpretation of visa availability pursuant to 245(a)(3), then the interpretation regarding visa availability under 203(h)(1)(A) should be consistent.

Some of my esteemed colleagues have pointed out that one who does not seek to acquire permanent residency within the time of the filing date, but rather, seeks to acquire permanent residence within one year of the final action date may lose out under the CSPA. This may well be the case. However, it is far more advantageous for a child’s age to be locked in at the earlier filing date than the final action date. In order to be consistent and for this scheme to withstand potential legal challenges,  under the broader definition of visa availability which must be applied consistently, permanent residency should be sought within one year of the filing date rather than the final acceptance date.

Gary Endelman and I fine tuned our proposal in 2014 by advocating  that visa availability ought to be based on the just one visa being saved in the backlogged preference category, 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 consumed 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 through the earlier filing date, and this  would be consistent with INA §245(a)(3). Similarly, this new visa availability ought to also protect the child from aging out under INA 203(h)(1)(A). Filing dates could potentially advance and become current.  Admittedly, it is not expected that the government will follow our “Thanksgiving turkey” proposal to the hilt, at least not yet, and it has been suggested by Greg Siskind on his Twitter feed that the filing dates will not move much in the first few months. The filing of early I-485 applications will give Charlie Oppenheim at DOS a better sense of how visa numbers will actually be utilized for the rest of the year.  “The goal of the changes is not to so much to allow people to file early as to have more accurate final action dates,” according to Siskind.

Regardless of whether the DOS and USCIS wish to advance the filing dates rapidly or not, it is important to protect a child from aging out at the time of the earlier filing date. Apart from ensuring that the parent and child immigrate together, this consistency will also make the new visa bulletin legally sound.  

Cyrus Mehta

EVERY COUNTRY EXCEPT THE PHILIPPINES: NEW DEVELOPMENTS IN OPT-OUT PROVISION UNDER THE CHILD STATUS PROTECTION ACT

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Section 6 of the Child Status Protection Act (CSPA) allows beneficiaries of I-130 petitions that have been converted from the Family Second Preference (F2B) to the Family First Preference (F1), after the parent has naturalized, to opt out and remain in the F2B. The American Immigration Council’s February 2015 advisoryprovides a comprehensive overview of the CSPA.

While the wait in the F1 is generally less than in the F2A, in some instances, it is possible for the F1 to be more backlogged than the F2B.  The Philippines has been the prime example, and was the only country where the F1 was worse off than the F2B for several years. Thus, the issue of whether to opt out of the F1 mainly concerned people born in the Philippines for several years.  Since June 2014, this has changed. The Philippines F1 has been doing better than the F2B, and there has been no need for beneficiaries of I-130 petitions born in the Philippines to opt out.   On the other hand, since June 2014, with the sole exception of Mexico, beneficiaries born in all other countries are better off under the F2B than the F1. This changed too for Mexico as of October 1, 2014, when even Mexican born beneficiaries started doing better under F2B than F1. Under the latest State Department Visa Bulletin of March 1, 2015, http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-march-2015.html, except for the Philippines, beneficiaries of I-130 petitions born in all other countries are better off under the F2B than the F1.

An quick analysis of how the F-1 has compared to the F2B since 1992 is provided below (courtesy David Isaacson):

According to the list of Family Worldwide priority dates for FY1992-2014 available at http://travel.state.gov/content/dam/visas/family-preference-cut-off-dates/Cut-off_Dates_worldwide_online.pdf, F1 has always been ahead of F2B, with a brief exception in FY-2001 (when F1 but not F2B became briefly unavailable in August and September 2001), until June 2014, when F2B pulled ahead (at first it was just 01APR07 for F2B versus 22MAR07 for F1, then the gap widened).  F2B has also been ahead in the three Visa Bulletins so far of FY2015, http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-october-2014.html , http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-november-2014.html, http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-december-2014.html , http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-january-2015.html, http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-february-2015.html , and http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-march-2015.html.

For the Philippines, according to the FY1992-2014 list at http://travel.state.gov/content/dam/visas/family-preference-cut-off-dates/Cut-off_Dates_Philippines_online.pdf, F2B pulled ahead of F1 in August of 1992, and stayed ahead until July of 2014.  Beginning in August 2014, Philippines F1 pulled back ahead of Philippines F2B, and it too has stayed that way October 2014-March 2015.

As for Mexico, the Mexico FY1992-2014 list at http://travel.state.gov/content/dam/visas/family-preference-cut-off-dates/Cut-off_Dates_Mexico_online.pdf  shows F1 generally ahead of F2B, but there have been more anomalies over the years.  At the end of FY1996 and in February-March of 2002, F1 was unavailable but F2B wasn’t.  There was an inversion in July 2001 right before both became unavailable for the remainder of FY2001.  In July-September of 2005, Mexico F1 retrogressed all the way to January 1, 1983, while F2B was at January 1, 1991.  In May of 2006, Mexico F2B again pulled slightly ahead of Mexico F1 before falling behind again in the remaining months of FY2006.  In FY2007, Mexico F2B was ahead of Mexico F1 in May 2007 through September 2007.  In FY2009, Mexico F2B pulled ahead, or rather F1 feel behind, during July-September 2009.  The next inversion after that was indeed October 2014, and then it has stayed inverted since.

Section 6 of the CSPA has been codified in Section 204(k) of the Immigration & Nationalization Act (INA) entitled “Procedures for unmarried sons and daughters of citizens,” which provides:

  • In general. – Except as provided in paragraph (2), in the case of a petition under this section initially filed for an alien unmarried son or daughter’s classification as a family-sponsored immigrant under section 203(a)(2)(B), based on a parent of the son or daughter be­ing an alien lawfully admitted for permanent residence, if such parent subsequently becomes a naturalized citizen of the United States, such petition shall be converted to a petition to clas­sify the unmarried son or daughter as a family-sponsored immigrant under section 203(a)(1).
  • Exception. – Paragraph (1) does not apply if the son or daughter files with the Attorney General a written statement that he or she elects not to have such conversion occur (or if it has occurred, to have such conversion revoked). Where such an election has been made, any determination with respect to the son or daughter’s eligibility for admission as a family-sponsored immigrant shall be made as if such naturalization had not taken place.
  • Priority date. – Regardless of whether a petition is converted under this subsection or not, if an unmarried son or daughter described in this subsection was assigned a priority date with respect to such petition before such naturalization, he or she may maintain that priority date.
  • Clarification. – This subsection shall apply to a petition if it is properly filed, regardless of whether it was approved or not before such naturalization.

What Section 204(k) means is that an F2B beneficiary of an I-130 petition is automatically converted into F1 upon the naturalization of the parent who was previously a lawful permanent resident (LPR).  However, such a beneficiary may opt-out, either prior to the conversion or after the conversion, by requesting such an election through a written statement.  If an election has been made, the son or daughter would be considered under the F2B as if such naturalization of the parent never took place.

At issue is the interpretation of the phrase “in the case of a petition under this Section initially filed for a alien’s unmarried son or daughter’s classification as family-sponsored immigrant under Section 203(a)(2)(B).”

In a previous USCIS Memo dated March 23, 2004 (March 23, 2004 Memo), the USCIS opined that the opt-out provision applied only to a beneficiary whose initial Form I-130 was filed after he or she turned 21 or over as  the unmarried son or daughter of an LPR.  If on the other hand, the I-130 petition was filed by an LPR on behalf of his or her child when the child was under 21 years of age, and the child attained the age of 21, and then the parent naturalized, the opt-out provision would no longer be applicable according to that Memo.

Fortunately, the USCIS reversed itself in a subsequent Memo from Michael Aytes, dated June 14, 2006 (June 14, 2006 Memo), and opined that the phrase “initially filed” would be applicable to the beneficiary who was sponsored as a minor.  The June 14, 2006 Memo generously notes that the prior policy had a perverse result of older siblings who were originally sponsored under F2B acquiring permanent residency more quickly than the younger siblings who had to wait longer under the F1.  The Memo also notes that it is reasonable to interpret “initially filed” as “initially filed for an alien who is now in the unmarried son or daughter classification.”

At present, beneficiaries born in all countries excepting the Philippines may opt out from F1 and remain in F2B, and thus the guidance provided in the March 23, 2004 Memo regarding contacting the USCIS Officer in Charge in Manila may no longer be relevant. According to a April 2008 Memo from Donald Neufeld (April 2008 Neufeld Memo), one must file a request in writing at the USCIS District Office with jurisdiction over the beneficiary’s residence. For example, one would have to make such a request with the New Delhi Field Office (which covers India, Pakistan, Bangladesh, Nepal, Bhutan, Sri Lanka, Afghanistan, and the Maldives) if the beneficiary resides in any of these countries.   The question is whether all USCIS District offices are set up to accept unsolicited requests of this sort, and whether such a request would truly be effective.

In addition to writing to a USCIS District Office, one should not be prevented from also writing to either the Service Center that processed the I-130 petition or to the National Visa Center, if the approved I-130 petition is already residing there. It may also be well worth it to notify the USCIS at the time of filing an adjustment of status application if the beneficiary resides in the United States.  For instance, if the beneficiary has automatically converted to F1 and finds that F2B is more advantageous, he or she should still go ahead and file the adjustment of status application accompanied by a letter requesting that he or she be allowed to opt-out of F1. The adjustment-application option arguably complies with the April 2008 Neufeld Memo because a family-based adjustment filing with the lockbox is made with the expectation that it will likely be ultimately forwarded to the local District Office for an interview, by way of the National Benefits Center.

The timing of making such a request is also crucial. It is probably advisable to make the request to opt out just prior to the priority date becoming current or at the time when it has become current. While one may in principle be able to reverse an opt-out, it is preferable to   wait until the F-2B is current or almost current before opting out.  One would not want to be the test case for how many times you can opt out, and reverse, and reverse your reversal, if the relative positions of the F-1 and F-2B keep changing over time before the priority date is current.

Finally, the USCIS has always taken the position, affirmed by the Board of Immigration Appeals in Matter of Zamora-Molina, 25 I&N Dec. 606 (BIA 2011) that it is the beneficiary’s biological age that is locked in when the petitioner naturalizes and not the protected CSPA age. Hence, if the beneficiary, who has already turned 21, has his or her age protected under the CSPA so as to remain in the Family Second Preference (2A), as the minor child of a permanent resident parent, then it may not be advisable for the parent to naturalize if the child would be disadvantaged under the F1, or if there is an opt out, under the F2B.  Zamora-Molina further held that the child could not opt out from F1 to F2A, only to F2B.  It is thus important to strategically consider whether naturalization by the parent would be worth it if it would disadvantage the child’s ability to more quickly receive the green card.

(The information contained in this blog is of a generalized nature and does not constitute legal advice).  

Cyrus Mehta

LET’S HOPE THAT’S WHAT IT MEANS: DOES EXECUTIVE INITIATIVE REALLY PROVIDE FOR EARLY ADJUSTMENT OF STATUS?

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By Gary Endelman and Cyrus D. Mehta

Most of the commentary and attention on the recent blizzard of White House and DHS memoranda on immigration reform quite properly fell on executive initiatives to bring the undocumented and their parents in from the shadows.  This is what the Administration clearly cares most about for logical political reasons. The White House perception, rightly or wrongly, is that the ever growing Hispanic constituency that the President wants to win over simply is not deeply concerned with having a more rational legal immigration system. Yet, there are a variety of positive steps that DHS Secretary Johnson outlined which do offer real benefits to workers and employers alike who know suffer from the sclerotic effects of chronic visa backlogs. The most promising innovation is the anticipated ability for the beneficiaries of approved I-140 petitions to apply for adjustment of status even in the absence of current priority dates. That, we all enthused, was something to rally round..  
Now that we have had a chance to exhale, a nagging doubt clouds this emerging optimism: Is early adjustment of status really what is contemplated?  While White House briefings and talking points certainly suggested this was the case, a stubborn yet deliberate reading of the various memoranda uncovers no explicit mention of early adjustment, only an intention to foster clarity, predictability, and transferability once the USCIS has approved an employment-based immigrant visa petition, Form I-140. DHS Secretary Johnson offers only the following:

“ I direct that USCIS carefully consider  other regulatory  or policy changes  to better assist and provide stability to the beneficiaries of approved employment-based immigrant  visa petitions. Specifically, USCIS should consider amending its regulations to ensure that approved, long-standing visa petitions remain valid in certain cases where they seek to change jobs or employers.”

Some doubting voices now raise up the possibility that the next step after I-140 approval will fall short of I-485 submission, perhaps only going so far as to allow for the granting of advance parole travel permission and issuance of employment authorization documents. We do not know if such doubts are justified but write now to explain why, if true, this is a very bad idea especially if it is offered without early I-485 submission as an alternative.
Let’s start with the reasons why allowing for early adjustment of status makes sense. We acknowledge that INA § 245(a) (3) only allows the filing of an I-485 application when the visa is “immediately available” to the applicant. What may be less well known, though no less important, is the fact that the INA itself offers no clue as to what “visa availability” means. While it has always been linked to the monthly State Department Visa Bulletin, this is not the only definition that can be employed. Therefore, we propose a way for USCIS to allow for an I-485 filing before the priority date becomes current, and still be faithful to § 245(a)(3).
The only regulation that defines visa availability is 8 C.F.R. § 245.1(g) (1), which provides: 
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). 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.
Under 8 C.F.R. § 245.1(g)(1), why must visa availability be based solely on whether one has a priority date on the waiting list which is earlier shown in the Visa Bulletin? Why can’t “immediately available” be re-defined based on a qualifying or provisional date? We are all so accustomed to paying obeisance to the holy grail of “priority date” that we understandably overlook the fact that this all-important gatekeeper is nowhere defined. Given the collapse of the priority date system, an organizing  principle that was never designed to accommodate the level of demand that we have now and will likely continue to experience,  all of us must get used to thinking of it more as a journey than a concrete point in time. The adjustment application would only be approved when the provisional date becomes current, but the new definition of immediately available visa can encompass a continuum: a provisional date that leads to a final date, which is only when the foreign national can be granted lawful permanent resident status but the provisional date will still allow a filing as both provisional and final dates will fall under the new regulatory definition of immediately available. During this period, the I-485 application is properly filed under INA §245(a)(3) through the new definition of immediately available through the qualifying or provisional date.
We acknowledge that certain categories like the India EB-3 may have no visa availability whatsoever. Still, the State Department can reserve one visa in the India EB-3 like the proverbial Thanksgiving turkey, as we have proposed previously. Just like one turkey every Thanksgiving is pardoned by the President and not consumed, similarly one visa can also be left intact rather than consumed by the alien beneficiary. So long as there is one visa kept available, our proposal to allow for an I-485 filing through a provisional filing date would be consistent with INA §245(a)(3).
We propose the following amendments to 8 C.F.R. § 245.1(g)(1), shown here in bold, that would 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) (“current priority date”). An immigrant visa is also considered available for provisional submission of the application Form I-485 based on a provisional priority date without reference to current priority date. No provisional submission can be undertaken absent prior approval of the visa petition and only if visas in the preference category have not been exhausted in the fiscal year. Final adjudication only occurs when there is a current priority 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.
Allowing early adjustment of status with companion work authorization, travel permission, and AC 21-like adjustment portability  will make possible the green card on a provisional basis in all but name. However, this is not all. The most important benefit may be the freezing of children’s ages under the formula created by the Child Status Protection Act (CSPA). If the White House will only grant EAD and Parole to I-140 beneficiaries, but stop short of allowing adjustment, then, on a massive scale, their children will turn 21, thereby aging out, long before the magic time for I-485 submission ever arrives.  This is because Section 3 of the CSPA only speaks of freezing the child’s age when the petition has been approved and the visa number has become available. Also,  the child must seek to acquire lawful permanent resident status within one year following petition approval and visa availability. Since Matter of O.Vazquez, absent extraordinary circumstances, only the filing of the I-485 can do that. Under the current definition of visa availability, joined at the hip to the Visa Bulletin, they have no hope. Only through a modified definition coupled with the notion of provisional adjustment can they retain the CSPA age. This is why invocation of early adjustments themselves, not merely EAD and Parole, to beneficiaries of I-140 petitions is so manifestly necessary. However, precisely as in the INA, the CSPA contains no definition of visa availability. A change in the applicable regulatory meaning along the lines we suggest will apply to CSPA and prevent the children of I-140 beneficiaries from aging out.  Granting the EAD and advance parole will sadly have no such effect.  Only early adjustment can do that. This is especially relevant now since the Supreme Court in Scialabba v. Cuellar De Osorio substantially narrowed the utility of priority date retention. The redefinition of visa availability that we propose not only provides the legal underpinning for early adjustment of status but also allows the children of I-140 petition beneficiaries to derive a priceless immigration benefit through this family relationship that would otherwise be lost. Given the importance of preserving the age of a child under the CSPA, why only restrict early I-485 filings to beneficiaries of I-140 petitions? Our proposed redefinition of visa availability ought to also apply uniformly to beneficiaries of family based I-130 petitions too. 
It is entirely possible that the White House may realize all of this and more. We would be most happy to be rendered redundant. The best advice is that which is entirely unnecessary. Yet, unless and until we see it in writing, perhaps the time for celebration should be postponed.

(Guest author Gary Endelman is Senior Counsel at Foster)
Cyrus Mehta

Scialabba v. Cuellar de Osorio: Does the Dark Cloud Have a Silver Lining?

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By Cyrus D. Mehta and David A. Isaacson

On June 9, 2014, the Supreme Court issued its ruling in Scialabba v. Cuellar de Osorio. (The case had previously been known as Mayorkas v. Cuellar de Osorio before Lori Scialabba was appointed as Acting Director of USCIS, replacing former Director Alejandro Mayorkas.)  The Court ruled in Cuellar de Osorio that the BIA’s previous interpretation of the Child Status Protection Act (CSPA), as set out in Matter of Wang, 25 I&N Dec. 28 (BIA 2009), was a reasonable interpretation of an ambiguous statute.  In particular, the Court deferred to the BIA’s narrow interpretation of INA §203(h)(3), 8 U.S.C. §1153(h)(3), severely limiting which derivative beneficiaries of visa petitions could retain their parents’ priority dates.  This is a disappointing decision, but the details of the opinions in Cuellar de Osorio do leave room for some hope.

As discussed in several severalpreviousposts onthis blog, INA §203(h)(3) provides for “automatic conversion” in the cases of certain beneficiaries of preference visa petitions whose age, even as adjusted under the CSPA to account for the time taken to process the visa petition, is determined to be above 21.  Some principal and derivative beneficiaries, according to the statute, will under these circumstances have their petitions automatically converted to the appropriate category, and retain the original priority date.  The question in Cuellar de Osorio and Matter of Wang was who gets to benefit from this automatic conversation.  The en banc Court of Appeals for the Ninth Circuit in Cuellar de Osorio, as well as the Court of Appeals for the Fifth Circuit in Khalid v. Holder, had argued for a broad interpretation which allowed all derivative beneficiaries to benefit, as at least some of the language of the statute seemed to suggest.  The BIA in Matter of Wang, as well as the Court of Appeals for the Second Circuit in Li v. Renaud and an earlier Ninth Circuit panel decision in Cuellar de Osorio, had chosen narrower approaches, which in effect allowed automatic conversion and priority date retention only for the principal and derivative beneficiaries of family 2A preference petitions, not the derivative beneficiaries of other categories of preference petitions.  The Supreme Court took the Cuellar de Osorio case to resolve this disagreement.

There was no single Supreme Court majority opinion in Cuellar de Osorio, but a total of five justices accepted the BIA’s narrow interpretation of the statute as set out in Matter of Wang, for two different sets of reasons.  The plurality opinion was written by Justice Kagan, and supported by Justices Kennedy and Ginsburg.  Chief Justice Roberts, joined by Justice Scalia, authored an opinion concurring in the judgment, but for somewhat different reasons.  Justices Sotomayor and Alito authored dissenting opinions; Justice Sotomayor’s dissent was joined by Justice Breyer in its entirety and by Justice Thomas except with regard to one footnote.

To appreciate the different opinions in Cuellar de Osorio, it is helpful to review the text of §1153(h)(3), quoted in the opinion of the Chief Justice and in a footnote to the plurality opinion.  It states:

If the age of an alien is determined under paragraph [1153(h)](1) [the CSPA provision the adjusts the age of a preference petition beneficiary to compensate for elapsed processing time] to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d) of this section, the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.

The different opinions in Cuellar de Osoriotook different views of what Congress may have meant in prescribing that “the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”

Justice Kagan’s plurality opinion described §1153(h)(3) as “Janus-faced”.  Kagan slip op. at 14.  The first half of the provision, she said, looks toward a broader interpretation of the sort supported by the Ninth Circuit, but the second half describes a remedy, automatic conversion, which Justice Kagan and the plurality saw as most naturally applying only when the new petition to which automatic conversion would occur would have the same petitioner and same beneficiary.  Given this “internal tension”, Justice Kagan said, the BIA was entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)—often abbreviated as “Chevron deference”.  As Justice Kagan and the plurality saw it, there are “alternative reasonable constructions” of §1153(h)(3), “bringing into correspondence in one way or another the section’s different parts.  And when that is so, Chevron dictates that a court defer to the agency’s choice—here, to the Board’s expert judgment about which interpretation fits best with, and makes most sense of, the statutory scheme.”  Kagan slip op. at 14.  As the plurality opinion explained in its conclusion:

This is the kind of case Chevron was built for.  Whatever Congress might have meant in enacting §1153(h)(3), it failed to speak clearly.  Confronted with a self-contradictory, ambiguous provision in a complex statutory scheme, the Board chose a textually reasonable construction consonant with its view of the purposes and policies underlying immigration law.  Were we to overturn the Board in that circumstance, we would assume as our own the responsible and expert agency’s role.  We decline that path, and defer to the Board.

Kagan slip op. at 33.

Chief Justice Roberts, joined by Justice Scalia, reached essentially the same conclusion as the three-Justice plurality led by Justice Kagan, but for different reasons.  Concurring in the judgment, the Chief Justice wrote that he did not see “conflict, or even internal tension . . . in section 1153(h)(3).”  Roberts slip op. at 2.  Rather, he “d[id] not think the first clause points to any relief at all.”  Id.at 3.  Instead, he described the second clause of §1153(h)(3) as “the only operative provision.”  Id.at 3-4. In that only operative provision, he took the view that beyond certain basic requirements, “Congress did not speak clearly to which petitions can “automatically be converted.”  Id. at 4.

The dissenting Justices, in contrast, were of the view that even if there was some ambiguity in the statute, it was not sufficient to justify the interpretation that the Board adopted in Matter of Wang.  While “Section 1153(h)(3) is brief and cryptic” and “may well contain a great deal of ambiguity, which the [BIA] is free to resolve,” Justice Alito wrote, it was at least clear that “the alien’s petition shallautomatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”  Alito slip op. at 2 (emphasis added in original).  The BIA, he contended, was “not free to disregard this clear statutory command.”  Id.  Justice Sotomayor, as well, argued in her dissent that because a reading of the statute was possible that gave effect to both the automatic conversion language and the statute’s broad description of who was eligible for automatic conversion, that reading should have been followed.  Because there were potential interpretations that “would treat §1153(h)(3) as a coherent whole,” she said, “the BIA’s construction was impermissible.”  Sotomayor slip op. at 9

On the surface, the Supreme Court’s decision in Cuellar de Osorio is obviously disappointing for a great many immigrants who were hoping to recapture priority dates of petitions initially filed for their parents through automatic conversion.  Aged-out children who have waited patiently for many years for their parent’s priority date to become current are told that they must now go back to the beginning of the line on a new petition filed by their parent under the Family 2B preference—which for most of the world has a backlog of more than seven years as of the June 2014 Visa Bulletin, and is backlogged many years more for those chargeable to Mexico or the Philippines.  While it is an unfortunate decision from that perspective, however, Cuellar de Osorio does contain some seeds of hope for better outcomes in the future.

The first seed of hope, with respect to §1153(h)(3) itself, is the latitude which the Court has provided for the executive branch to reconsider its decision.  Justice Kagan’s plurality opinion is careful to state that “we hold only that §1153(h)(3) permits—not that it requires—the Board’s decision to so distinguish among aged out beneficiaries.”  Cuellar de Osorio slip op. of Kagan, J., at 21.  The concurring opinion of Chief Justice Roberts and Justice Scalia is not as explicit in this respect, but it describes its disagreement with the plurality as involving “a different view of what makes this provision ambiguous under Chevron” rather than going to the question whether the provision is ambiguous at all. Indeed, the Chief Justice criticized Justice Kagan’s “Janus-faced” metaphor of §1153(h)(3). “But when Congress assigns to an agency the responsibility for deciding whether a particular group should get relief, it does not do so by simultaneously saying that the group should and that it should not. Direct conflict is not ambiguity, and the resolution of such a conflict is not statutory construction but legislative choice.” Id. at 2.   Thus, a majority of the Court agrees that the meaning of §1153(h)(3) is an ambiguity subject to Chevron deference, rather than suggesting, as the Second Circuit had done in Li v. Renaud, that a narrow reading of §1153(h)(3) is compelled by the statute.

When a statute is ambiguous in this way, the Supreme Court has made clear in National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005), the agency may reconsider its interpretation even after the courts have approved of it. Thus, the Court’s description of §1153(h)(3) as an ambiguous statute subject to Chevrondeference to the BIA’s interpretation implies that the BIA could, even after Cuellar de Osorio, reverse its position in Matter of Wang.  So too could the Attorney General, on whose behalf the BIA ultimately acts, go against Matter of Wang and adopt a broader interpretation of §1153(h)(3).  As the INA provides, within the executive branch, “determination and ruling by the Attorney General with respect to all questions of law shall be controlling.”  INA §103(a)(1), 8 U.S.C. §1103(a)(1).  Ultimately, it is within the power of Attorney General Holder to save those beneficiaries who have waited in line for many years, and now find themselves pushed to the back of a new line that may be decades long.  Whether or not these results of the Wang interpretation affirmed in Cuellar de Osorio may be legally permissible, they are not desirable as a policy matter, and the Supreme Court has left the Attorney General the power to recognize this.  In light of the Obama Administration’s many noteworthy administrative reform measures in the face of Congressional inaction, the provisional waiver rule and Deferred Action for Childhood Arrivals being such examples, a broader interpretation of §1153(h)(3) would be consistent with these efforts.

Of course, Congress too could fix the problem, by redrafting the statute to make it clearer that all derivative beneficiaries whose adjusted age is over 21 can retain the principal beneficiary’s priority date.  This was done in section 2305(d)(5)(C) of  S. 744, the comprehensive immigration reform bill passed by the Senate, which unfortunately has not been brought to a vote in the House of Representatives.  But if Congress continues not to act, the executive branch has the power to remediate the unfairness of requiring those who have waited in line with their parents for many years to go to the back of a new line and start over from the beginning.

Another policy argument in favor of such a reversal of Matter of Wang which would be worth the consideration of the BIA or the Attorney General, or for that matter Congress, is that the Matter of Wang interpretation of §1153(h)(3), now affirmed in Cuellar de Osorio, reintroduces some of the arbitrariness which the enactment of the CSPA had sought to avoid.  The age-adjustment process under INA §203(h)(1), 8 U.S.C. §1153(h)(1), in effect subtracts from the adjusted age of a visa applicant the time during which a visa petition was pending.  If the adjusted age of a derivative applicant is under 21, the CSPA as interpreted in Wang and Cuellar de Osorio will allow the applicant to utilize a principal beneficiary parent’s priority date; otherwise, the benefit of the priority date will be lost entirely.  But that means that children whose parents were petitioned for on the same date, and whose parents’ priority dates become current simultaneously, may be treated in dramatically different fashion depending on how long it happened to take USCIS to process the petition on behalf of their parents during the time that no visa number was available.  The broader interpretation of §1153(h)(3) rejected by the BIA in Matter of Wang would have reduced this arbitrariness, by enabling even a child whose parent’s petition happens to be processed relatively quickly, and whose CSPA-adjusted age is therefore over 21 when the priority date becomes current, to enjoy some benefit from that petition and its priority date.

The potential positive implications of Cuellar de Osorio beyond the CSPA context are also worth considering.  As previously discussed in postsonthis blog and articles by co-author Cyrus D. Mehta and Gary Endelman regarding “The Tyranny of Priority Dates” and “Comprehensive Immigration Reform Through Executive Fiat”, the executive branch’s authority under Brand X can potentially be used as a force for good in the immigration context.  This occurred for example in Matter of Douglas, 26 I&N Dec. 197 (BIA 2013), where, as discussed in one of the aforementioned blog posts, the BIA chose not to follow an unfavorable decision by the Court of Appeals for the Third Circuit regarding procedures for acquisition of citizenship under former section 321(a) of the Immigration and Nationality Act.  If, as the plurality in Cuellar de Osorioindicates, tension between the apparent meaning of different statutory provisions is sufficient to activate the Chevronand Brand X authority of the executive branch even if one could conceive of a potential interpretation which could harmonize the different provisions (at the cost of some awkwardness), this will expand the power that the executive branch may have to use Chevron and Brand X for pro-immigration ends.

Take, for example, the proposal in “The Tyranny of Priority Dates” that the executive branch re-interpret INA §203(d) so that derivative family members do not consume additional visa numbers beyond those taken up by the principal beneficiaries of visa petitions, thus freeing up a greater quantity of visa numbers for use by others.  As discussed in that article, there are admittedly some statutory provisions which might be read as pointing against such an interpretation.  But there are also statutory provisions which pull in favor of such an interpretation, most notably the text of INA §203(d) itself when it states that a derivative family member is “entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.”  INA §203(d), 8 U.S.C. §1153(d).  If family members must be provided with separate visa numbers, then how can one fulfill this command for the family members of the principal immigrant who receives the last available visa number in a fiscal year for a particular category—will they not inevitably be subject to a delay in their “order of consideration” that is inconsistent with §203(d)?  This tension, interpreted in line with the version of Chevron deference implemented by the Cuellar de Osorioplurality, would provide sufficient authority to reinterpret the priority-date system in a way that could significantly reduce the current backlogs in the visa preference categories.

Remarkably, Cuellar de Osorio was not decided on the usual conservative-liberal ideological lines as with many Supreme Court decisions. The pairings of justices who decided one way or the other are rather odd much like combining a full-bodied red Malbec with a delicate white fish –  Ginsburg and Scalia were part of the plurality that denied relief to children while Sotomayor and Thomas vigorously dissented. The outcome in this case is neither a liberal nor a conservative victory.  This could potentially give President Obama through his Attorney General some political cover if they decided to use Brand X as a force for good by reversing Matter of Wang. Of course, the government caused this in the first place by litigating all the way to the Supreme Court. Sceptics will rightly question why the government would change course after having gone so far. However, the Attorney General, through the BIA, has reversed course before. For example, in Matter of Silva, 16 I&N Dec. 26 (BIA 1976), the BIA acquiesced to Francis v. INS, 532 F.2d 268 (2d Cir. 1976), and allowed 212(c) relief for LPRs in deportation proceedings who had not previously departed and returned, despite its earlier contrary holdings in Matter of Francis and Matter of Arias-Uribe, 13 I&N Dec. 696 (BIA 1971). If Congress fails to  enact Congressional reform, it is likely that the Administration will endeavor to provide relief through further administrative measures. Our blog provides the Administration with a way to do so for children who were left out of the American Dream solely because they were unlucky to have aged out.

Cyrus Mehta

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

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

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

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

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

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

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

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

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

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

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

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