Tag Archive for: Dates for Filing

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

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

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By Cyrus D. Mehta

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

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

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

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

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

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

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

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

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

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

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

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

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

Cyrus Mehta

Although the October 2023 Visa Bulletin is Disappointing, the Administration Still Has the Option to Advance the Dates for Filing in the Next Visa Bulletin

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By Cyrus D. Mehta

The October 2023 Visa Bulletin was disappointing. There was some expectation that the Administration would radically advance the Dates for Filing so that many more could file I-485 adjustment of status application, but that never happened notwithstanding a bipartisan letter signed by more than 50 Congresspersons advocating for this reform.  It was hardly any consolation that the India EB-1 Final Action Dates moved from January 1, 2012 in the September 2023 Visa Bulletin to January 1, 2017 in the October Visa Bulletin and the India EB-3 Final Action Date moved from January 1, 2009 in the September 2023 Visa Bulletin to May 1, 2012 in the October Visa Bulletin. While the USCIS in the October Visa Bulletin has permitted filing I-485 applications under the Dates for Filing, they were still dishearteningly retrogressed for India born applicants at July 1, 2019 for EB-1, at May 15, 2012 for EB-2 and August 1, 2012 for EB-3. Interestingly, the USCIS has stated  that the employment-based FY 2024 limit is 165,000, which is more than the 140,000 annual limit but not as significant as the increased limit resulting from the spillover from the family based preferences in prior recent years during Covid. This has resulted in many Final Action dates advancing from the September 2023 Visa Bulletin but the advances will not bring too much cheer to the backlogged community with the exception of the worldwide EB-1,  whose Final Action Dates and Dates for Filing have become current.

Following the heels of the October 2023 Visa Bulletin, the USCIS posted a bulletin entitled “USCIS Actions to Support Adjustment of Status Applicants Who are in H-1B Status in the United States” extolling all that it has done so far relieve H-1B beneficiaries in the crushing backlogs such as options following the termination of employment and broadening the ability of children under 21 to claim CSPA protection under the DFF. The USCIS has not done enough and more can surely be done. At the end of the bulletin USCIS states, “We will keep working within our legal authority to provide as much flexibility, predictability, and dignity as possible for all those waiting for their chance to become a lawful permanent resident and ultimately a U.S. citizen.” This claim sounds hollow unless the Administration starts taking bold action.

Long before the bipartisan Congressional letter was issued in July 2023, I have been advocating for advancing the Dates for Filing for several years. The State Department has 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. Although the administration disappointingly did not dramatically advance the DFF, it can do so in next month’s and subsequent visa bulletin.

Below is an extract from my recent  interview with Stuart Anderson in Forbes entitled “Changing Visa Bulletin Can Save Immigrants and H-1B Visa Holders” that provides the blueprint for the Administration to advance the Dates for Filing:

Anderson: You have written that the State Department and the Biden administration could provide relief by changing the dates in the Visa Bulletin. Can you explain how this would work?

Mehta: The State Department Visa Bulletin consists of dual dates–Final Action Dates and Dates for Filing. The dates under the Final Action Dates determine when the green card can be issued to the foreign national, while the Dates for Filing indicate when the foreign national can file an I-485 application for adjustment of status. One easy fix is to advance the Dates for Filing to current so that many more backlogged beneficiaries of approved petitions can file I-485 adjustment of status applications.

Anderson: What would be the impact of this change?

Mehta: By being able to file I-145 applications, skilled foreign workers caught in the employment-based backlogs can get ameliorative relief such as an employment authorization document (EAD), travel permission and be able to exercise job mobility under INA section 204(j). Spouses and minor children can also avail of work authorization and travel permission after they file their I-485 applications.

Many more of the children of these backlogged immigrants would also be able to protect their age if the date for filing is made current. While it would be ideal for Congress to provide more immigrant visas so that people become permanent residents, in the face of Congressional inaction, allowing skilled workers to file I-485 applications would give them and their families more mobility and flexibility.

Anderson: Why do you believe the State Department has the legal authority to make this change in the Visa Bulletin?

Mehta: INA section 245(a)(3) allows for the filing of an adjustment of status application when “an immigrant visa is immediately available” to the applicant.

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 Visa Bulletin, May 2012, a month later, the EB-2 cut-off dates for India and China retrogressed to August 15, 2007.

If the State Department were 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 may still potentially be waiting and have yet to receive their green cards even as of today.

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.

More recently, the September 2022 Visa Bulletin had a Final Action Date of December 1, 2014, for EB-2 India. In the next, October 2022 Visa Bulletin the Final Action Date for EB-2 India was abruptly retrogressed to April 1, 2012 and then further retrogressed to October 8, 2011 in the December 2022 Visa Bulletin. If a visa number was immediately available in September 2022, an applicant under EB-2 India with a priority date of December 1, 2014, or earlier should have been issued permanent residence.

These three examples, among many, show that “immediately available” in INA section 245(a)(3), according to the State Department, has 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.

Anderson: Why do you suggest that the Dates for Filing be advanced to “current”?

Mehta: Although INA section 245(a)(3) requires that an immigrant visa be immediately available to file an I-485, the Dates for Filing are based on an elastic view of visa availability and are generally ahead of the Final Action Dates by a few to several months. According to U.S. Citizenship and Immigration Services: “If USCIS determines there are more immigrant visas available for a fiscal year than there are known applicants for such visas, we will state on this page that you may use the Dates for Filing chart.” While it is salutary that the Dates for Filing are ahead of the Final Action Dates by a few months based on an estimate of visa availability, there is no reason why the Dates for Filing cannot be set even more ahead of the Final Action Dates.

Taking this to its logical extreme, visa availability for establishing the Dates for Filing 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 a noncitizen beneficiary.

So long as there is one visa kept available, it would provide the legal basis for an I-485 filing under the Dates For Filing, and this would be consistent with INA section 245(a)(3). This is reflected in the August 2023 Visa Bulletin as the first visa in the India EB-3 has a priority date of January 1, 2009. Hence, there is one available visa in the India EB-3 skilled worker, otherwise it would have stated “Unavailable.” The Dates for Filing could potentially advance and become current based on this available visa with a January 1, 2009 priority date in the India EB-3, 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.

The point that I have tried to make about the Administration’s elastic interpretation of “immediately available” under INA 245(a)(3) is underscored by the dates in the Family Second 2A Second Preference in the October 2023 Visa Bulletin. The Final Action Dates for the F2A in the Worldwide is February 8, 2019. On the other hand, the Dates for Filing for the F2A in the Worldwide is September 1, 2023. If the term “immediately available” was strictly construed, there would not be a 4+ year difference between the two dates but yet applicants under both the Final Action Dates and Dates for Filing are able to file I-485 applications under INA 245(a)(3).

Many were understandably both disappointed and outraged after the release of the October 2023 Visa Bulletin. Noted immigration attorney  Greg Siskind posted this on X (formerly Twitter):

If Congress won’t do its job, the Administration certainly has options. Allowing everyone to file to adjust (the @cyrusmehta theory) or get EADs and be free agents and not counting derivatives all have strong legal support. Those protesting and saying that USCIS can’t legally do it have a status quo bias.

I agree. There is no need for this Administration which is otherwise pro immigrant to stonewall good ideas. It is hoped that some courageous folks within the Administration shatter the status quo and radically advance the Dates for Filing in the next visa bulletin.

 

 

 

Cyrus Mehta

Advancing the Dates for Filing in the State Department Visa Bulletin Will Restore Balance and Sanity to the Legal Immigration System

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By Cyrus D. Mehta

The August 2023 Visa Bulletin is a disaster. Here are some of the highlights:

Establishment of Worldwide employment-based first preference (EB-1) final action date.  Rest of World countries, Mexico, and Philippines will be subject to a final action date final action date of August 1, 2023. It is likely that in October the category will return to “Current” for these countries.

Retrogression in employment-based first preference (EB-1) for India.  India will be subject to an EB-1 final action date of January 1, 2012. It is likely that in October the final action date will advance.

Retrogression in employment-based third preference (EB-3) for Rest of World countries, Mexico, and Philippines. The Rest of World, Mexico, and Philippines EB-3 final action date will retrogress in August to May 1, 2020.

Retrogression in family-based second preference (F-2A) for Rest of the World countries, China and India. The Rest of World, China, and India F2A final action date will retrogress to October 8, 2017.

.The bad news from the July 2023 Visa Bulletin continues into the August 2023 Visa Bulletin.  The India EB-2 final action date remains retrogressed at January 1, 2011. The India EB-3 final action date remains retrogressed at January 1, 2009. Still, the corresponding dates for filing  in the August 2023 visa bulletin are significantly more ahead than the final action date. For instance, the dates for filing for the F2A for all countries is current. The dates for filing for the EB-1 for the Rest of the World is current and for India is June 1, 2022. Yet, the USCIS has indicated that I-485 adjustment of status applications can only be filed in August 2023 under the dates for filing chart  if they are family-based while I-485 adjustment of status applications can only be filed in August 2023 under the final action dates chart if they are employment-based.

The USCIS should allow I-485 applications related to both family and employment-based petitions to be filed under the dates for filing chart. Indeed, in the face of massive retrogression in the Visa Bulletin, the Biden administration does have the authority to move the dates for filing to current. However, even before taking this radical step, which has a legal basis, the administration should  at least allow I-485 applications to be filed under the dates for filing in both the family and employment-based preferences.

The total allocation of visa numbers in the employment and family based categories are woefully adequate. §201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000.  The worldwide level for annual employment-based preference immigrants is at least 140,000.  INA §202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. These limits were established in the Immigration Act of 1990, and since then, the US Congress has not expanded these limits for well over three decades. In 1990, the worldwide web was not in existence, and  since then, there have been an explosion in the number of jobs as a result of internet based technologies and so many related technologies as well as a demand for foreign skilled workers many of whom have been educated at US educational institutions.  Yet, the US legal immigration system has not kept up to timely give green cards to immigrants who contribute to the country. Due to the per country limits,  till recently it was only India and China that were backlogged in the employment based preferences, but now under the August 2023 Visa Bulletin all countries face backlogs. Still, India bears the brunt disproportionately in the employment-based categories, and one study has estimated the wait time to be 150 years in the India EB-2!

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 for filing in the State Department’s Visa Bulletin so that many more backlogged beneficiaries of approved petitions can file I-485 adjustment of status applications and get  ameliorative relief such as an  employment authorization document (EAD), travel permission and to be able to exercise job portability under INA §204(j). Spouse and minor children can also avail of work authorization and travel permission after they file their I-485 applications.

There is a legal basis to advance the dates for filing even to current. This would allow many backlogged immigrants to file I-485 adjustment of status applications and get the benefits of adjustment of status such as the ability to port to a new job under INA 204(j), obtain travel permission and an EAD. Many more of the children of these backlogged immigrants would also be able to protect their age under the USCIS’s updated guidance relating to the Child Status Protection Act.

INA §245(a)(3) allows for the filing of an adjustment of status application when “an immigrant 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 may still potentially be waiting and have yet to receive their green cards even as of today! 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. More recently, the September 2022  Visa Bulletin had a final action date of December 1, 2014 for EB-2 India. In the next October 2022 Visa Bulletin the FAD for EB-2 India was abruptly retrogressed to April 1, 2012 and then further retrogressed to October 8, 2011 in the December 2022 Visa Bulletin. If a visa number was immediately available in September 2022, an applicant under EB-2 India with a priority date of December 1, 2014 or earlier should have been issued permanent residence.

These three 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 DFF 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.

Taking this to its logical extreme, visa availability for establishing the dates for filing 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 noncitizen 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). This is reflected in the August  2023 Visa Bulletin as the first visa in the India EB-3 has a priority date of January 1, 2009. Hence, there is one available visa in the India EB-3 skilled worker, otherwise it would have stated “Unavailable.”  The   dates for filing could potentially advance and become current based on this available visa with a  January 1, 2009 priority date in the India EB-3, 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.

The administration simply needs to move the dates for filing to current or close to current. It can undertake this executive action through a stroke of a pen. However, if it needs to do this through rulemaking 8 CFR 245.1(g)(1) could be easily 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.

 

The Biden administration has provided relief to hundreds of thousands of foreign nationals through executive actions such as humanitarian parole, now enforcing deportation against low priority individuals and extending DACA. The administration recently announced a Family Reunification Parole Initiative for beneficiaries of approved I-130 petitions who are nationals of Colombia, El Salvador, Guatemala, & Honduras. Nationals of these countries can be considered for parole on a case-by-case basis for a period of up to three years while they wait to apply to become lawful permanent residents. This is an example of the administration using its executive authority to shape immigration policy in the absence of meaningful Congressional action to reform the system. Indeed, this initiative can serve as a template to allow beneficiaries of approved I-130, I-140, and I-526 petitions to be paroled into the US while they wait for a visa number to become available, which under the backlogs in the employment and family preference categories, can take several years to decades. The Biden administration ought to likewise advance the DFF to current so that beneficiaries of family and employment petitions can file I-485 applications and get the benefits of employment authorization, advance parole and the ability to port to a new employer if the job is same or similar to the position that was the subject of the sponsorship for the green card. There  is also a parallel campaign to convince the administration to issue an EAD and advance parole for beneficiaries of approved I-140 petitions, although this should be done in conjunction with advancing the dates for filing so that applicants can also file I-485 applications. Once the I-485 is filed applicants would also be able to port to same or similar jobs under INA §204(j) and keep intact the underlying labor certification and I-140 petition.  As we have shown in a related blog on the compelling circumstances EAD, if the EAD is not linked to an I-485 application and they do not have nonimmigrant status, holders of this EAD will have to leave the US to consular process for their immigrant visas and would also need another employer to sponsor them if they have left or cut ties with the original employer who sponsored them.  This would entail getting the new employer to start the whole labor certification process, which is perilous these days if the employer as laid off workers.

The Supreme Court in United States v.  Texas very recently rendered a blow to Texas and Louisiana in holding that they had no standing to challenge the Biden administration on federal immigration policy on enforcement priorities. As this analysis can also apply to challenges to other executive actions on immigration by states not friendly to pro immigrant executive actions, the Biden administration should move boldly and advance the DFF in the State Department Visa bulletin to restore balance and some semblance of sanity to the legal immigration system in the US.

Cyrus Mehta

DHS’s Family Reunification Parole Initiative Can Serve as Template for Other Bold Executive Actions to Reform the Immigration System Without Fear of Being Sued by a State

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By Cyrus D. Mehta and Kaitlyn Box*

On July 7, 2023, DHS announced a new family reunification parole initiative for beneficiaries of approved I-130 petitions who are nationals of Colombia, El Salvador, Guatemala, & Honduras. Nationals of these countries can be considered for parole on a case-by-case basis for a period of up to three years while they wait to apply to become lawful permanent residents. This is an example of the administration using its executive authority to shape immigration policy in the absence of meaningful Congressional action to reform the system. Indeed, this initiative can serve as a template to allow beneficiaries of approved I-130, I-140, and I-526 petitions to be paroled into the US while they wait for a visa number to become available, which under the backlogs in the employment and family preference categories, can take several years to decades.

Section 212(d)(5) of the Immigration and Nationality Act (INA) authorizes the Secretary of Homeland Security, in his discretion, to parole noncitizens into the United States temporarily on a case-by-case basis for urgent humanitarian reasons or significant public benefit. The parole authority has long been used to establish family reunification parole (FRP) processes administered by U.S. Citizenship and Immigration Services, including the Cuban Family Reunification Parole Program, which was established in 2007, and the Haitian Family Reunification Parole Program, which was established in 2014.

The processes begin, according to the DHS announcement, with the Department of State issuing an invitation to the petitioning U.S. citizen or lawful permanent resident family member whose Form I-130 on behalf of a Colombian, Salvadoran, Guatemalan, or Honduran beneficiary has been approved. Beneficiaries awaiting an immigrant visa could include certain children and siblings of U.S. citizens and certain spouses and children of permanent residents. The invited petitioner can then initiate the process by filing a request on behalf of the beneficiary and eligible family members to be considered for advance travel authorization and parole.

The new processes allow for parole only on a discretionary, case-by-case, and temporary basis upon a demonstration of urgent humanitarian reasons or significant public benefit, as well as a demonstration that the beneficiary warrants a favorable exercise of discretion. Individuals paroled into the United States under these processes will generally be considered for parole for up to three years and will be eligible to request employment authorization while they wait for their immigrant visa to become available. When their immigrant visa becomes available, they may apply to become a lawful permanent resident.

The Federal Register Notices for Colombia, El Salvador, Guatemala, and Honduras provide more information on the FRP process and eligibility criteria.

According to the federal register notices, the justification for the new FRP initiative is part of a broader, multi-pronged, and regional strategy to address the challenges posed by irregular migration through the Southwest border. Consideration of noncitizens for parole on a case-by-case basis will meaningfully contribute to the broader strategy of the United States government (USG) to expand access to lawful pathways for individuals who may otherwise undertake an irregular migration journey to the United States. The case-by-case parole of noncitizens with approved family-based immigrant visa petitions under this process will, in general, provide a significant public benefit by furthering the USG’s holistic migration management strategy, specifically by: (1) promoting family unity; (2) furthering important foreign policy objectives; (3) providing a lawful and timely alternative to irregular migration; (4) reducing strain on limited U.S. resources; and (5) addressing root causes of migration through economic stability and development supported by increased remittances.

It remains to be seen whether states like Texas will attack this program in federal court. A similar humanitarian parole program has been the subject of a lawsuit by Texas and nineteen other states, and  allows 30,000 qualifying nationals of Cuba, Haiti, Nicaragua and Venezuela to be admitted to the United States every month for up to two years. The new FRP initiative is more narrowly tailored as it applies only to spouse, children and sibling beneficiaries of  approved I-130 petitions. Also, in United States v.  Texas, the Supreme Court in an 8-1 majority opinion rendered a blow to Texas and Louisiana in holding that they had no standing to challenge the Biden administration on federal immigration policy on enforcement priorities. Although that case dealt with whether a state could challenge the federal government’s ability to exercise prosecutorial discretion, it can also potentially deter a state’s ability to demonstrate standing when it challenges other federal immigration policies.

In Texas’ challenge to the Deferred Action for Childhood Arrivals (DACA) program, Texas has argued that it is entitled to “special solicitude.” The doctrine first enunciated in Massachusetts v. EPA allows states to skirt some of the usual standing requirements, like whether the court can redress an alleged injury. However, Justice Brett Kavanaugh addressed the doctrine in a footnote in United States v. Texas stating that the states’ reliance on Massachusetts v. EPA to support their argument for standing was misplaced. Massachusetts v. EPA held that the state could challenge the U.S. Environmental Protection Agency’s failure to regulate greenhouse gases based on special solicitude, although that case dealt with a “statutorily authorized petition for rulemaking, not a challenge to an exercise of the executive’s enforcement discretion,” the footnote said. Another footnote in Justice Kavanaugh’s majority opinion said lower courts need to be mindful of constraints on lawsuits filed by states, saying that indirect effects on state spending from federal policies don’t confer standing. Still, Justice Kavanaugh’s opinion in United States v. Texas left open the possibility that “a challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status could lead to a different standing analysis”. Note that Justice Kavanaugh said that it “could” lead to a different standing analysis and not that it would.

Florida has already challenged the Biden administration’s “Parole Plus Alternatives to Detention” (Parole+ATD) and “Parole with Conditions in Limited Circumstances Prior to the Issuance of a Charging Document” (PWC) policies in Florida v. Mayorkas  that is currently pending before the Eleventh Circuit Court of Appeals. In a brief filed on July 5, 2023, the government argued that the “special solicitude” doctrine proffered by states in United States v. Texas. should not apply in the humanitarian parole context. Florida asserted that it was entitled to special solicitude for the same reasons articulated by Texas in United States v. Texas – “a challenge to its sovereignty and indirect fiscal costs flowing from the presence of more noncitizens in its state.” Because the Supreme Court rejected an almost identical argument for the application of special solicitude in United States v. Texas, the government argued that Florida is similarly not entitled to avail of the doctrine.

The Supreme Court’s decision in United States v. Texas could have interesting implications for challenges to DACA, as well, and DACA recipients as intervenors have filed additional briefing to the US District Court for the Southern District of Texas in US v. Texas, Case No. 1:18-CV-68. In his concurrence in United States v. Texas, Justice Gorsuch argued that the harm Texas and the states that joined it were concerned with – primarily increased spending to provide healthcare and other services to higher numbers of undocumented immigrants present in the state – was not redressable. Although an injunction would prevent the implementation of the Biden administration’s enforcement guidelines, Justice Gorsuch argued that this remedy was unavailable to the states because of 8 U. S. C. § 1252(f )(1), which provides that “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of ” certain immigration laws, including the provisions that the states want to see enforced. The district court attempted to avoid offending this provision by “vacating” the Biden administrations guidelines instead of issuing an injunction, but Judge Gorsuch argued in part that a vacatur order nullifying the guidelines does nothing to redress the states’ supposed injuries because the “federal officials possess the same underlying prosecutorial discretion”, even in the absence of the guidelines. DACA recipients argued that this program also represents an exercise of inherent prosecutorial discretion, and states’ challenge of the program therefore suffers from the same redressability problem identified by Judge Gorsuch. Similarly, the states challenging the DACA program have alleged indistinct injuries similar to those articulated by Texas in United States v. Texas. Because the Supreme Court found that Texas lacked standing to challenge the Biden administration’s guidelines, DACA recipients have argued that states do not have stating to challenge the DACA program based on similar theories.

DOJ attorneys and intervenor defendants filed a joint motion on July 7, 2023, asking Judge Tipton of the United States District Court for the Southern District of Texas to delay a bench trial in the earlier lawsuit filed by Texas to challenge the Biden administration’s parole program for Cubans, Haitians, Nicaraguans, and Venezuelans. Although the motion argued that the outcome of United States v.  Texas would determine whether Texas had standing in the federal suit, Judge Tipton predictably declined to push back the trial date. Texas had previously argued that the parole program is distinguishable from the Biden administration’s enforcement guidelines because “[w]hatever discretion [the administration] might have in choosing which aliens to arrest or otherwise take into custody, [it has] no discretion to parole into the country aliens who do not meet the statutory criteria for parole.” At this point, states like Texas are arguing that their legal challenges to Biden’s earlier humanitarian parole or DACA program can be distinguished from United States v. Texas, which involved enforcement priorities, while the Biden administration and intervenors such as DACA recipients are arguing that Texas should not have standing to challenge even other immigration programs.

Returning to the idea of how this initiative can be broadened, parole can potentially be expanded to all beneficiaries of approved I-130, I-140, and I-526 petitions who are waiting overseas in the green card backlogs. Even if parole is expanded, the administration can still remain faithful to INA § 212(d)(5) by approving parole on a discretionary and case-by-case basis for urgent humanitarian reasons or a significant public benefit. For instance, it may be possible to justify the parole of certain beneficiaries of I-526 petitions who have made a minimum investment of  $500,000 in a US business prior to May 15, 2022 or $800,000 after this date,  and created 10 jobs as that could be considered a significant public benefit. The same justification can be made for certain beneficiaries of approved I-140 petitions in the EB-1, EB-2, and EB-3 preference categories whose presence in the US can benefit US employers who have sponsored them through the labor certification process or who have demonstrated that they are either persons of extraordinary ability or are well situated to advance the national interest of the United States. Beneficiaries of approved I-130 petitions who are caught in backlogs can make a justification for parole for urgent humanitarian reasons to unite with family members in the US.

Out of the four proposals Cyrus Mehta made to the Biden administration in May 2021 for reforming the legal immigration system without waiting for Congress to act, we are happy to see that two have come to fruition- parole for beneficiaries of I-130 petitions and using the Dates for Filing (DFF) for protecting the age of the child under the Child Status Protection Act. Cyrus Mehta has also proposed that the administration has the authority to advance the DFF in the State Department Visa Bulletin to current to maximize the number of people who can file for adjustment of status in the US. Cyrus Mehta has also proposed that there is nothing in INA § 203(d) that requires the counting of derivatives in  the family and employment green card preferences, although since the submission of this proposal, the DC Circuit Court of Appeals in Wang v. Blinken ruled that INA § 203(d) requires the counting of derivative. Hence, any hope of administrative reform with regards to the unitary counting of family members has been shelved for the time being unless Congress is able to provide clarification on §203(d). Even if the administration issues a new interpretation to INA § 203(d) and abandons the position it took in Wang v. Blinken, the DC Circuit Court of Appeal’s interpretation will still prevail within the jurisdiction.

As Texas v. United States has made it harder for a state like Texas, which has reflexively sued on every immigration policy to get standing, the Biden administration should consider moving forward more boldly by reforming the immigration system through executive actions without fear of being sued by these states. It may be no coincidence that the latest family reunification parole initiative was unveiled within two weeks of the favorable ruling for the Biden administration in Texas v. United States!

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

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

Cyrus Mehta

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:

Read more
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.