By Attorneys Robert L. Reeves and Jeremiah Johnson
Reeves & Associates, A Professional Law Corporation filed a class action lawsuit 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 visas. Reeves & Associates has been actively pursuing Child Status Protection Act (CSPA) relief for families with aged-out children. In some cases, the United States Citizenship and Immigration Service (“USCIS”) agreed with Reeves & Associates’ interpretation of the statute and has granted visa petitions giving the original priority date of the parent to the child who had aged-out. However, USCIS failed to fully embrace important sections of CSPA as a matter of policy. On some occasions they have granted relief to one family member while denying it to other siblings. Consequently, many families were wrongly denied relief under CSPA. Many more requests were simply ignored. As such, Reeves & Associates filed a class action lawsuit this past Friday, June 20, 2008, in the U.S. District Court, challenging the USCIS’ failure to comply with the provisions of CSPA on behalf of immigrant families.
Specifically, Reeves & Associates is seeking to compel USCIS to properly adjudicate all cases filed under Section 3 of CSPA and comply with the requirements of retaining the parent’s original priority date in subsequent petitions filed by the parent. Congress passed CSPA on August 6, 2002 to protect the children of immigrants who turn twenty-one years old (“aged-out”) while they wait for immigrant visas. Under Section 203(h)(1) of CSPA, the child may use a formula that allows for the amount of time an immigrant visa was processing to be subtracted from the child’s age on the date the green card application was filed. Congress enacted this section as a remedy against protracted delays in adjudicating visa petitions. However, many children would still age-out despite this formula.
Under Section 3 of CSPA, codified at Section 203(h)(3) of the Immigration and Nationality Act (INA), children who age-out – even after applying the formula – can convert to the appropriate immigrant category and retain the priority date under which the parent immigrated. Specifically, Section 203(h)(3) states that “the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date upon receipt of the original petition.” So under this provision of the law, a child who aged-out retains the original priority date and in most cases can reunite with their family. Moreover, if the child who aged-out is in the United States, he or she should be able to apply for a green card if otherwise eligible. In short, an aged-out child, who is a derivative beneficiary of the visa petition of his parent, will be able to reunite with their family faster by utilizing their parent’s earlier priority date.
Unfortunately, USCIS has failed to comply with INA § 203(h)(3). Moreover, USCIS has also failed to promulgate federal regulations or even issue policy memorandum regarding this provision of law leaving adjudicators with little guidance. This failure resulted in decisions that were arbitrary and inconsistent. Because of these problems, Reeves & Associates filed a class action lawsuit on behalf of immigrant families to force USCIS to comply with CSPA. The class action lawsuit presents two different classes of individuals. Members of the first class consist of those who filed petitions with requests for retention of the parent’s original priority date and their petitions were denied. Members of the second class consist of 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.
Parents whose children have aged-out or the children themselves should seek the advice of competent legal counsel to determine if this section of CSPA applies to them and whether they will be affected by this lawsuit.