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USCIS New Guidance On CSPA Helpful In One Respect, But Flawed In Others

by Alan Lee, Esq.

U.S.C.I.S.'s new guidance on its modification of an earlier interpretation of the Child Status Protection Act (CSPA) is interesting, but ultimately unsatisfactory on a number of points which will hopefully be treated more favorably in the CSPA regulation making its way through the regulatory process of U.S.C.I.S. and the Office of Management & Budget (OMB). The new guidance changes the agency's past position that an alien beneficiary of a visa petition that was approved before August 6, 2002 (the date of enactment of the CSPA) and aged out before that date could only be covered by the CSPA if he/she had filed an application for permanent residence (either adjustment of status or an immigrant visa) on or before August 6, 2002, and no final determination had been made on that application prior to August 6, 2002. The guidance was presented in 3 parts - Donald Neufeld, Acting Associate Director, Domestic Operations', "Memorandum for Field Leadership, et al. Subject: AFM Update: Chapter 21.2 (e) The Child Status Protection Act of 2002 (CSPA) (AD07-04)", the U.S.C.I.S. update of May 6, 2008, "U.S.C.I.S. Issues Revised Guidance on Child Status Protection Act (CSPA)," and fact sheet of May 6, 2008, "U.S.C.I.S. Issues Revised Guidance on the Applicability of the Child Status Protection Act (CSPA)." The new guidance now acknowledges that an application for adjustment of status or immigrant visa did not necessarily have to be filed by August 6, 2002, for the child in that situation to obtain CSPA benefits - that where the child qualified as an immediate relative of a U.S. citizen and was under 21 at the time that the immediate relative category petition was filed and so long as there was no final determination by August 6, 2002, the alien is recognized as a child under the CSPA. Also that where the child qualified as a preference category beneficiary, he/she can now obtain CSPA benefits as long as he/she was still under the age 21 when the priority date was reached and filed an application for adjustment of status or immigrant visa within one year of the visa availability date so long as there was no "final determination" on his/her case by August 6, 2002. The guidance remedies include motions to reopen without fee to the local office of U.S.C.I.S. for those who filed I-485 adjustment of status applications on or after August 6, 2002, and were denied on the sole basis that the applicant did not fit the definition of a child; and new I-485 filings for applicants who never filed before, and either qualified as immediate relatives, or preference category beneficiaries whose priority dates became current on or after August 7, 2001, did not apply for permanent residence status within one year of petition approval, but would have otherwise qualified for CSPA coverage.

This new guidance is USCIS's response to the 2007 Board of Immigration Appeals (BIA) decision, Matter of Avila-Perez, which held that an immediate relative child whose I-130 petition was approved in 1996 at the age of 20 and I-485 adjustment of status application filed in 2003 was allowed to keep his status as a child as the CSPA statute does not require an application to be pending on August 6, 2002. The BIA found that, upon review of the legislative history of the CSPA, it could find no indication that Congress intended to exclude from coverage of the CSPA those individuals whose visa petitions were approved before its effective date, but waited until after its effective date to file an adjustment application. The Board also pointed out that it was reasonable to conclude that the Senate intended to expand the coverage of the statute beyond those individuals whose visa petitions and applications were pending on the date of the CSPA to also protect those individuals whose visa petitions were approved before the effective date, so long as their applications had not already been finally adjudicated.

The guidance, however, does not go far enough in defining the term, "final determination" before August 6, 2002, that would bar an applicant from the benefits of the CSPA. The immigration laws provide that an adjustment of status application can be renewed in proceedings before the immigration court, and the BIA had earlier held in a 2006 unpublished decision, Matter of Ki Na Kim, that an I-485 application which has been administratively denied (in that case on April 19, 2002) does not constitute a final denial as it can be renewed before the immigration judge. This position was repeated by the Board in Avila-Perez in allowing the applicant to pursue his claim in removal proceedings, the Board also noting the 2004 Ninth Circuit case of Padash v. INS which defined the final determination to include an appeal in the federal court. The guidance could have easily informed applicants in the situation of their ability to renew their I-485 applications before the immigration court if their cases had not yet been referred there and provided a procedure by which local offices of U.S.C.I.S. could assist in issuing Notices To Appear (NTAs) so that applicants could pursue this avenue of relief. Otherwise applicants are left with no set procedure to have an NTA expeditiously issued, and as we know from experience, affirmatively requesting an NTA from the U.S.C.I.S. or U.S.I.C.E. usually involves much time and effort.

The guidance also takes an unwarranted harsh interpretation on a point that we have been raising with USCIS and the Department of State (DOS) over the past few years - that the principal alien adjusting status in the U.S. should not be bound to submit an I-824 application for his overseas dependents to immigrate within a year of visa availability in satisfaction of the statute's wording that the applicant "sought to acquire" residence status within that period since the U.S.C.I.S.' instruction on I-824 filing was and is that there is no ability to file until the petition or application is approved. We provided documentation to the agencies in our cases of specific instances in the past in which I-824 applications filed concurrently with I-485 applications were denied for untimely filing -- the Service decisions saying that applications were only to be filed once the I-485 adjustment of status applications were approved. Even now, the accompanying instructions on the I-824 form state the following:

When Should I Use Form I-824?

You should use Form I-824 to request the Bureau of Citizenship and Immigration Services (CIS) to provide further action on a previously approved petition or application.

Note: The CIS will not process Form I-824 if your petition or application has been denied or has not yet been approved. This form should not be used to verify the status of a pending petition or application. (Instruction Sheet to Form I-824 (Rev. 07/09/04)

Nowhere on the form's instructions does it state that an I-824 can be concurrently filed with an I-485 application. To this point, the guidance states that "A previously filed I-824 that was denied because the principal alien's adjustment of status application had not yet been approved can serve as evidence of having 'sought to acquire' LPR status ... Consequently, neither a labor certification nor a visa petition will satisfy the 'sought to acquire' LPR status requirement because these actions are an integral part of the visa petition approval process and will necessarily precede visa availability." This language unfortunately tracks a recent DOS opinion to us on one of our cases in which DOS stated that we had to show that our client himself actually attempted to file an I-824 application. In that case, we posited that the "sought to acquire" LPR status language was satisfied by the principal alien's marking on his I-485 form that his wife and child would follow to join him in the United States and that he clearly marked "yes" on the I-485 Part 3 Section B that he wished his wife and child to apply with him. The U.S.C.I.S. should not be so close-minded on what constitutes fulfillment of the "sought to acquire" statutory language of the CSPA, only accepting the filing of an I-824 to satisfy the statute. The CSPA statute does not insist upon an I-824 application, thus allowing applicants to show by other indicia that they "sought to acquire" LPR status. The guidance here is especially unwarranted given U.S.C.I.S.'s contradictory I-824 instruction sheet and the past practice of some of its officers denying I-824s concurrently filed with I-485s. If the agency's own trained officers did not know that form I-824 could be concurrently filed with an I-485, how was the average member of the public supposed to know?

The guidance also spends considerable time in defining the counting procedure for determining whether a preference category applicant qualifies as being under the age of 21 and giving proper credit for the time that a petition has been pending with the U.S.C.I.S.. However, it fails to take into account the 45 days which can also be credited to a CSPA beneficiary under the U.S. Patriot Act for cases in which the beneficiary turned the age of 21 after September 2001 and the petition or application was filed on or before September 11, 2001. As remedial legislation, liberal interpretation should be given to the CSPA provisions to allow the largest class of individuals to benefit, and U.S.C.I.S.'s interpretation of CSPA counting without the additional 45 days of the U.S. Patriot Act is restrictive, especially as the Department of State has taken a contrary position.

Under the circumstances, while politely applauding U.S.C.I.S.'s bowing to the BIA's decision of Avila-Perez, we reach the conclusion that the guidance is flawed, and hope that it is not a precursor of U.S.C.I.S.'s mindset in preparing the CSPA regulation which is expected be promulgated by summer's end.

© Alan Lee, Esq.


About The Author

Alan Lee, Esq. the author is a 25+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.


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