By: Attorneys Robert L. Reeves and Robert J. Dupont

Reeves & Associates filed a complaint for relief against the United States Citizenship and Immigration Services (USCIS) in federal district court (Case No. CV 04-7981) and has successfully compelled the USCIS to convert beneficiaries of I-130 visa petitions from F-1 status (son or daughter of a U.S. Citizen) back to F-2B status (son or daughter of a legal permanent resident). This eliminated long waits for available visa numbers in a less favorable immigrant visa category and allowed these individuals to adjust status to legal permanent resident. Sixteen clients benefited from USCIS settlement of that case and it was believed at that time that the Service had changed its policy with regard to delay and denial of requests to re-classify to F-2B status.

A request for reclassification is necessary for Filipino nationals whose parents petitioned them and subsequently naturalized and the beneficiary children were automatically converted to the less favorable F1 category. Reclassification requests are granted under INA §204(k) of the Child Status Protection Act (CSPA) to cure a backlog problem mainly affecting Philippine nationals. Unmarried sons and daughters of legal permanent residents (known as F-2B category) have a shorter waiting period for their visa number to become current than unmarried sons and daughters of United States Citizens (F1 category). In order to resolve the long delay associated with the F1 category, petitioners may request re-classification to F2B status under INA §204(k)(2).

Reeves & Associates has recently returned to federal court demanding re-classification of status for another client with a long-delayed consular interview in Manila, Philippines (Case No. CV 05-2418 JFW). Instead of following the requirements set forth in the law, USCIS and Department of State filed a Motion for Summary Judgment claiming that Defendants could deny re-classification to persons who’s I-130 visa petitions were filed before they turned 21 and were originally classified as F2As. The government claimed authority under the March 2004 policy memo of USCIS Director, Joe Cuddihy.

USCIS and the Department of State further claimed that because the beneficiaries were originally filed under the F2A category, conversions did not apply pursuant to USCIS Director Joe Cuddihy’s Memo of March 2004. Attorneys Robert Dupont and Robert Reeves filed an opposition to the Government’s motion. Reeves & Associates clearly demonstrated that USCIS was wrong and provided the court with the legislative history of the CSPA, including testimony of congresspersons showing that CSPA is intended to allow all persons to re-classify their visa category regardless of whether their petition was filed prior to their 21st birthday.

The Federal District Court agreed with Reeves & Associates, denied the governments’ motion, and forced the USCIS and Department of State to honor all requests for re-classification regardless of the age of the beneficiary at the time their petition was filed.

Reeves & Associates has now sent a letter to the United States Attorney informing the government that unless USCIS issues a new policy memo setting forth the proper procedure for honoring requests for re-classification from F-1 status it will file a class-action lawsuit seeking a new nationwide policy for re-classification applicants. If the government fails to comply, Reeves & Associates will file this class action case in early 2006.