Reeves Complaint in CSPA Lawsuit – Costelo v. Chertoff, Case No. SACV 08-688 (June 20, 2008)

Cuellar de Osorio v. Scharfer

Los Angeles – Reeves & Associates, A Professional Law Corporation filed a class action lawsuit today in the U.S. District Court, Central District CA, Case Number SACV08-688 JVX (SHx) on behalf of tens of thousands of immigrant families whose adult children have been wrongfully denied of visas. Attorneys for the families are seeking to compel the United States Citizenship and Immigration Service (“USCIS”) to act in accordance with the provision of Child Status Protection Act (CSPA) that enables children to reunite with their families more quickly.

Prior to CSPA children who reached the age of 21 were no longer eligible to obtain an immigrant visa with the rest of their family. These children became known as “age-outs.” However, Congress enacted Section 3 of CSPA, codified as INA § 203(h)(3), to keep children together with their parents. Specifically, this provision allowed children to automatically convert the visa petition and retain the original filing date – known as the priority date – after the child had aged out. As such, an aged-out child, who is a derivative beneficiary of the visa petition of his parent, can reunite with their family faster by utilizing their parent’s earlier priority date. As of today, USCIS has not only failed to comply with INA § 203(h)(3), but has also failed to promulgate regulations or issue policy memorandum regarding this provision of law.

“This case affects tens of thousands of immigrant families,” said Robert L. Reeves, founder and Managing Attorney of Reeves & Associates, APLC. “A child abroad who aged-out is eligible under CSPA for an immigrant visa, and if the child is in the United States, he or she will be able to adjust to legal resident status,” explained Mr. Reeves.

The class action lawsuit presents two different classes of aggrieved individuals. Nancy Miller, a partner with Reeves & Associates and co-counsel, describes the two classes as “those who filed petitions with requests for retention of the parent’s original priority date whose petitions were denied and those who have received no response at all to their requests for retention of the original priority date.” In both cases parents remain separated from their children.

Although USCIS has granted some visa petitions and permitted retention of the earlier priority dates pursuant to INA § 203(h)(3) to some, there appears to be no uniform policy from USCIS as a whole. Jeremiah Johnson, a partner with Reeves & Associates and co-counsel, said “the lack of any regulations or even policy memorandum has lead to arbitrary and inconsistent decision-making affecting thousands on a global level.” Joyce Komanapalli, an associate with Reeves & Associates and co-counsel, added “USCIS’s refusal to issue visa petitions with the original priority date is at odds with the language, structure, history and purpose of the Child Status Protection Act.”

“It is incomprehensible why USCIS would deny these requests given the plain language of the statute and the Congressional history of CSPA.” said Mr. Reeves.

The class action lawsuit is seeking to compel USCIS to properly adjudicate all cases filed under CSPA, or INA § 203(h)(3), and comply with the requirements of retaining the parent’s original priority date in subsequent petitions filed by the parent.