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Carl Shusterman's Immigration Update

Supreme Court Decision on CSPA Coming Soon

Rating: 6 votes, 5.00 average.
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.

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Updated 05-05-2014 at 01:39 PM by CShusterman

Comments

  1. Michael E Pist0on's Avatar
    But the way I read the oral argument, the majority consensus seem to be that section 203(h)(3) was ambiguous and therefore the BIA's decision would be deferred to. In fact, the poor justices seemed absolutely flummoxed by the complexity of the statutory language. It was almost humorous to watch them struggle, and certainly gave strong support to the old saw that immigration is, next to tax, the most complex area of law.
  2. Mikky's Avatar
    Really great news
    I have question, hope will get answer
    I am GC holder(employment) and my family members name was never added when I filed my GC because they were not here that time
    When I got GC , one child aged out and could not file. Now is my child is elgible in this category. Because some says NO because it was never added before.
  3. CShusterman's Avatar
    Quote Originally Posted by Michael E Pist0on
    But the way I read the oral argument, the majority consensus seem to be that section 203(h)(3) was ambiguous and therefore the BIA's decision would be deferred to. In fact, the poor justices seemed absolutely flummoxed by the complexity of the statutory language. It was almost humorous to watch them struggle, and certainly gave strong support to the old saw that immigration is, next to tax, the most complex area of law.
    Michael,

    I'm more optimistic. Please see http://blogs.ilw.com/entry.php?7757-...-Supreme-Court

    Carl
  4. cloudedge's Avatar
    seeing the light at the end of tunnel, expecting a positive result from supreme court
  5. catx's Avatar
    Quote Originally Posted by Mikky
    Really great news. I have question, hope will get answer. I am GC holder (employment) and my family members name was never added when I filed my GC because they were not here that time When I got GC , one child aged out and could not file. Now is my child is eligible in this category. Because some says NO because it was never added before.
    My son is in a similar situation. Myself and my wife, son, and daughter have been in the U.S. for a number of years. Initially we were on TN / TD visas, and then as we started the permanent residency process we changed to H-1B / H-4 visas. While waiting the years for my priority date to become current my son turned 21 (and he switched to a F-1 visa so he could complete the last year and a half of his Bachelors of Science degree at one of the largest and well regarded public universities in the U.S., and he is now continuing on a F-1 visa pursuing a Masters of Science degree at another public university). My priority date finally became current mid last year and myself and my wife and daughter were able to file for and receive our permanent residency visas.

    Even with the extra months for my I‑140 petition processing and approval under the CSPA my son aged‑out (and was thrown out of the 'line') ~10 months before we were able to file for and receive our permanent residency visas.

    To Mr. Shusterman, I have been following the CSPA court challenge, case, rulings. Thank you for your efforts. My question is that the information I have read has been about family based immigration. I have not seen anything noted about the hopeful ruling applying to employment based immigration, such as my son.
  6. Mikky's Avatar
    Catx Please keep in touch I guess it is for employment base too Just cross fingure s
  7. CShusterman's Avatar
    The rule, in my opinion, will have to the same for both family-based and employment-based immigration.
  8. Mikky's Avatar
    Quote Originally Posted by CShusterman
    The rule, in my opinion, will have to the same for both family-based and employment-based immigration.
    Thanks very much for clarification
    Now praying and praying
    Waiting for positive outcome which
    Can change life of my child for good who is still student and close to competition
    God bless you
  9. catx's Avatar
    Quote Originally Posted by CShusterman
    The rule, in my opinion, will have to the same for both family-based and employment-based immigration.
    Mr. Shusterman thank you for your replying with your opinion, which deservedly goes beyond a mere legal "opinion" when it comes to this and other immigration matters. The clarification is exactly what I have been looking to hear. Let's hope that the Supreme Court is listening and will act with reason (and not rely on hyper technical arguments such as the definition of "automatic").
  10. Edd's Avatar
    Hi Mr. Shusterman. Thank You for Helping people all these years.
    If the SC decides in our favor, what would be my next step? And how long do I still have to wait in line for a GC?
    I'm unmarried son, waiting for 30years now. Petition - Sister to Sister. PD - 1984. The recent document I have is from The US embassy in my country way back in year 2007 confirming I'm not eligible to migrate with my parents because I already aged out.
  11. Married son's Avatar
    My mom's original I-130 (Siblings of USC) was dated in 1986 when I was 13 years old.
    She got a green card in 1997 when I was 24 years old (Age out).
    She did not apply I-130 for me as an unmarried son because I would get married and my case would be automatically dropped.
    After she became a US Citizen she applied I-130 for me as a married son of USC in 2011.
    Am I still eligible to apply my case based on the 9th circuit dicision of retention
    of original priority date (1986) even though I was aged out before CSPA (2002)?
    I am currently legal status in US.

    Thank you for your time and services.
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