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On June 9, 2014, the Supreme Court of the United States in Scialabba v. DeOsorio, in a 5-4 decision, reversed the decision of the U.S. Court of Appeals for the 9th Circuit, and ruled that the “automatic conversion” clause of the Child Status Protection Act (CSPA) does not provide benefits to most immigrant families.
As a result, tens of thousands of immigrant families will continue to be separated as parents and underaged children immigrate to the U.S. while sons and daughters who turned 21 years of age during the waiting process are forced to remain abroad, separated from their families.
The Court ruled that the automatic conversion clause was ambiguous and deferred to the highly-restrictive 2009 decision of the Board of Immigration Appeals (BIA) in Matter of Wang.
We have explained in previous posts why we believe that the Board’s decision in Matter of Wang is unreasonable and should not be accorded deference. However, the decision of the Supreme Court cannot be appealed.
The Court held that
“The first clause of §1153(h)(3) states a condition that encompasses every aged-out beneficiary of a family preference petition. The second clause, however, does not easily cohere with the first. It prescribes a remedy that can apply to only a subset of the beneficiaries described in the first clause.”
It deferred to Matter of Wang which restricts the persons who may benefit from CSPA’s automatic conversion clause to aged-out beneficiaries of 2A family-based petitions.
The sons and daughters of our plaintiffs who are beneficiaries of family-based 3rd and 4th preference visa petitions do not qualify for automatic conversion or even for retention of their priority dates.
As the dissent points out, when the U.S. citizen sister of Norma Uy sponsored her and her family for green cards in 1981, Norma’s daughter Ruth was 2-years-old. However, after waiting in line with her parents for a green card for over 20 years, by the time that the family reached the front of the line, Ruth was over 21 years of age, too old to immigrate together with her family under Matter of Wang.
Going to the back of the 2B line isn’t much of an option.
Because of the numerical restrictions in this category, the length of the 2B line is 28.7 years for persons born in the Philippines and 115.5 years for persons born in Mexico. So, as a practical matter, not receiving credit for the time that they spent waiting in line together with their parents, prevents sons and daughters of immigrants from reuniting with their families in the United States.
Is this really what Congress intended when they passed the Child Status Protection Act in 2002? Not according to the bipartisan group of Senators who submitted an amicus brief to the Supreme Court disputing the government’s interpretation of the law.
Furthermore, what sense does it mean to subtract the time the visa petition was pending from all children of green card applicants, but apply the automatic conversion clause to only a small subset of children?
The petition for Norma Uy was approved the same day that it was filed. The reason that her daughter Ruth was over 21 years old when the priority date was reached is the 23 year waiting time for a sibling born in the Philippines.
What if Norma had a sister who was sponsored on the same day, and the sister had a son born on the same day as Ruth? Suppose the government took 10 years to approve the petition. Under the Supreme Court’s decision, Ruth’s cousin would be able to subtract 10 years from his age when the priority date was reached, and unlike Ruth, he could immigrate with this family.
If the automatic conversion clause, unlike the subtraction clause, only protects a small subset of sons and daughters of immigrants, whether children are able to immigrate together with their families is akin to playing roulette in Las Vegas. Purely a matter of luck!
Now that the Supreme Court has ruled against immigrant families, Congressional action is necessary to restate in the most clear and unambiguous language possible the intent of CSPA’s automatic conversion clause.
Our country should have an immigration system that unites families, not one which needlessly separates them.
Updated 06-09-2014 at 10:56 PM by CShusterman
On June 5, DHS Secretary Jeh Johnson announced the process for persons who have received work permits (EADs) under the Deferred Action for Childhood Arrivals (DACA) programs to renew their DACA status and work permits for another 2 years. Also, in this article, we describe the process by which persons in DACA status can obtain green cards.
Since the summer of 2012, over 560,000 persons who entered the United States as children have obtaining lawful status through the DACA program. However, later this year and next, their status is due to expire.
The DHS has unveiled the process for them to extend their DACA status and EADs in the U.S.
They must begin by completing the newly-reissued form I-821D, Consideration for Deferred Action for Childhood Arrivals, plus form I-765 for a new EAD (along with a filing fee for $465) as well as the I-765 worksheet. They must also submit their fingerprints and photos. The DHS will conduct a background check.
In order to maintain eligibility for DACA, an applicant must:
Not have departed the U.S. since August 15, 2012 unless they did so pursuant to a grant of “advance parole”;Not have been convicted of a felony, a significant misdemeanor or three or more misdemeanors; andNot pose a threat to national security or public safety.
USCIS reminds applicants to submit their renewal applications at least 120 days before their current DACA application is due to expire. However, it may be prudent to do so 180 days before the expiry date.
From DACA to Green Card
Since many persons with DACA cards entered the U.S. “without inspection”, they have been told that it is impossible to become a lawful permanent residents of the U.S. because they did not enter the U.S. legally.
However, this is not necessarily true.
Persons with DACA card are eligible to apply for permission to travel outside the U.S. under the following circumstances:
If you obtain “advance parole” to travel abroad, be aware that when you return to the U.S., you last admission to the U.S. is lawful.
Therefore, should you marry your U.S. citizen fiancé, you can immediately apply for a green card. The whole procedure takes place in the U.S. and is usually completed within a matter of months.
Updated 06-05-2014 at 02:27 PM by CShusterman
proposed regulation which would permit certain H-4 spouses of H-1B professionals to apply for Employment Authorization Documents (EADs).
Under the proposed regulation, the following classes of H-4 spouses would qualify for EADs:
1. Where the H-1B spouse is the beneficiary of an approved I-140 EB visa petition; and
2. Where the H-1B spouse has been granted a post-6th year H-1B extension under AC-21.
While this is great news for the H-4 spouses of H-1B visa holders who are currently in the green card process, it is not as broad of the regulations which allow all spouses of persons in E-2 and L-1 status to obtain EADs. Additionally, if the H-1B spouse has an approved I-130 family-based visa petition, his H-4 spouse will not be eligible to apply for an EAD.
My advice is make sure your employer submits a PERM application, or an I-140 if a PERM application is not required, for the H-1B spouse during the first year of his/her employment. This not only put the family on the track for permanent residence, but will accelerate the date when the H-4 can be employed.
DHS estimates that 100,000 H-4 spouses would be eligible for EADs in the first year and that about 36,000 would be eligible in each subsequent year.
Another proposed regulation would allow persons in H-1B1 status (from Chile and Singapore), E-3 professionals (from Australia) and CW-1 workers (from the Commonwealth of the Northern Mariana Islands) the same benefits as H-1B professionals when they apply for a extension of stay. Currently, H-1B and L-1 workers are permitted to continue to be employed for 240 days simply by applying for an extension of stay. The proposed regulation would grant H-1B1, E-3 and CW-1 workers the same benefit.
The proposed regulation would also permit EB-1 Outstanding Professors and Researchers to submit to submit evidence which is comparable to that which is listed in existing regulations.
The public comment period for the proposed H-4 regulation ends on July 11, 2014.
Updated 05-14-2014 at 01:06 PM by CShusterman
We expect the Supreme Court to issue a decision on the nationwide class action lawsuit regarding CSPA, Mayorkas v. DeOsorio, very soon, possibly on May 19.
While we lawyers argue over the meaning of terms like "retention", "automatic conversion" and "appropriate category", the issue in this case can be summarized as follows: Are children who have stood in line for years, or ever decades, beside their parents waiting for their priority date to be current, entitled to get credit for this time, or, if they have "aged-out" during this time, must they go to the back of the line and restart the immigration process?
Bear in mind that the line is almost 30 years for unmarried sons and daughters from the Philippines and over 115 years for children born in Mexico. And that if they are forced to go to the back of the line, they cannot get married without losing their priority dates. So, as a practical matter, these sons and daughters will never be able to rejoin the parents under the government's argument.
Could Congress, in passing legislation whose purpose was to keep families together, have intended such a harsh result? Not according to the Senators who submitted a Friend of the Court Brief agreeing with our position in this case.
After all, for many years, the government has adhered to a regulation which provides that as a person converts from one preference category to another, they are never forced to go to the back of the line. Instead, they always receive credit for the time that they spent in line.
Let's say that a son's LPR mother sponsors him for a green card in the 2B category on July 4, 2000, and before his priority date becomes current, his mother naturalizes. Now he moves from the 2B line to the 1st preference line. He is not forced to restart the immigration process. Instead, he is given full credit for the time that he spend waiting in the 2B line. Later, if he marries before his priority date becomes current, both he and his wife as well as their children, all go to the 3rd preference line. The one thing that never changes is they are all entitled to the July 4, 2000 priority date.
The government has no problem with this concept. It has never maintained that the regulation enables the beneficiary or his wife and children are "line jumpers" who are displacing others. After all, it was the government which wrote this regulation and has enforced it for decades.
Why then does Justice Department argue in Mayorkas v. DeOsorio that children who stood in line together with their parents for many years and have been separated from them since before we sued the government in 2008, and the 6 years that have elapsed since then, are line jumpers?
Could it be that this line of argument is being used to mask the government's attempt to restrict the operation of CSPA so severely that the very families that the law was written to protect will now be separated forever?
I know that the Supreme Court Justices are way smarter than Yours Truly and I believe that they will order the government to finally implement CSPA as Congress intended.
Updated 05-05-2014 at 01:39 PM by CShusterman
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Each attorney’s profile, in addition to the overall rating, ranks attorneys according to their (1) experience; (2) industry recognition and (3) professional conduct. Clients can post reviews of attorneys and other lawyers can post peer endorsements.
In addition, Avvo lists the lawyer’s phone number and address, and links to the attorney’s website, blog and social media sites.
If the attorney has been disciplined by the State Bar, Avvo will note this.
The lawyer can list his education, work experience, awards, associations that he is a member of, publications, speaking engagements and noteworthy cases that he has won.
In addition, those attorneys who participate in Avvo’s free question and answer forum are awarded points for answering questions, posting legal guides, having the asker mark the answer as “helpful” or as the “best answer” to a particular question.
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