USCIS CHANGES POLICIES TO ALLOW IMMEDIATE IMMIGRATION OF THOUSANDS OF ADULT SONS AND DAUGHTERS OF LAWFUL PERMANENT RESIDENTS AND PROVIDE RELIEF FOR V VISA HOLDERS

By Attorneys Robert L. Reeves and Lori Schoenberg

United States Citizenship and Immigration Services (USCIS) has announced two important policies that have a significant impact upon the ability of adult sons and daughters of legal immigrants to the United States to come to the United States, and to be reunited with their families. In the first policy change, USCIS is now allowing unmarried adult sons and daughters of naturalized United States citizens to benefit from the Child Status Protection Act (CSPA) by being re-classified as unmarried sons and daughters of lawful permanent residents for immigrant visa purposes, so that they be placed into an immigrant visa category that would allow them to immigrate to the United States at an earlier time. In the second policy change, USCIS is allowing adult beneficiaries of I-130 immigrant visa petitions to get extensions of V visas that will permit them to stay in the United States with their families while they wait for immigrant visas to become available for them, even if the parents who petitioned for them have become naturalized United States citizens. Both policies were challenged in federal lawsuits filed and litigated by Reeves & Associates, over the past four years.

The first policy change concerns the treatment of unmarried adult sons and daughters of legal immigrants to the United States under CSPA. In CSPA, Congress hoped to eliminate significant delays experienced by unmarried children of legal immigrants who seek to join their families in the United States. CSPA allows unmarried sons and daughters of lawful permanent residents, under section 203(a)(2) of the INA, to be treated as unmarried sons and daughters of United States citizens, under INA 203(a)(1), if their parents became naturalized citizens. In most cases, being treated as an unmarried son or daughter of a citizen eliminates years of delay in getting an immigrant visa. For unmarried sons and daughters from certain countries, however, being treated as an unmarried son or daughter of a citizen can delay the federal government from issuing an immigrant visa to that person for up to five years, because there are less immigrant visas available for people in that immigrant visa category.

Congress tried to resolve that problem in CSPA, by allowing unmarried sons and daughters of naturalized United States citizens to opt out of the conversion of their immigrant visa category, and to be re-classified as unmarried sons and daughters of lawful permanent residents for immigrant visa purposes, as if their parents’ naturalization had never taken place. CSPA does not apply to unmarried children of naturalized United States citizens, whose parents wait until their naturalization to file immigrant visa petitions for them, because those children are considered to be immediate relatives of United States citizens, for whom immigrant visas are immediately available.

The federal government refused unmarried sons and daughters’ requests to opt out of the conversion of their immigrant visa category, because their parents petitioned for them to come to the United States when they were under twenty-one years of age. In September of 2004, Reeves & Associates filed a lawsuit, Maniago v. Neufeld, Case No. CV 04-7981, to force the federal government to grant requests for re-classification of the immigrant visa categories for unmarried sons and daughters of naturalized United States citizens under CSPA. Reeves & Associates settled that lawsuit with the federal government, after it agreed to re-classify the immigrant visa categories for the unmarried sons and daughters of the plaintiffs in the case. However, the federal government continued to refuse numerous requests by unmarried sons and daughters of naturalized United States citizens to re-classify their immigrant visa category under CSPA, even after the settlement. Since the federal government refused to apply CSPA, and to allow unmarried sons and daughters of naturalized citizens to opt out of the conversion of their immigrant visa category, Reeves & Associates filed two new lawsuits in the federal district courts in Los Angeles and San Francisco, to compel the defendants to re-classify the immigrant visa petitions of unmarried sons and daughters of naturalized United States citizens under the Child Status Protection Act (CSPA). Those lawsuits, Maniago v. Chertoff, Case No. CV06-3768 MRP (JCx), and Mangoba v. Chertoff, Case No. C 06-03797 JL, were filed in federal court in June of 2006.

In its policy memorandum, USCIS authorized the immediate re-classification of immigrant visa petitions for all unmarried sons and daughters of naturalized United States citizens under CSPA. USCIS emphasized that the age of an alien beneficiary when an immigrant visa petition is filed has no bearing on the beneficiary’s eligibility to opt out of the conversion of his or her immigrant visa category under CSPA.

The second policy change concerns extensions of V Visas, for adult sons and daughters whose parents petitioned for immigrant visas for them. In the Legal Immigration Family Equity Act, or LIFE Act, Congress allowed child beneficiaries of immigrant visa petitions filed by their lawful permanent resident parents to receive V Visas, which would allow them to enter the country and remain with their parents while they waited for immigrant visas to become available. Children were eligible to receive V visas that would allow them to enter the United States if they were under twenty-one years of age, and were waiting for immigrant visas to become available for them for over three years. In the past, USCIS cancelled the V visas of children who reached their twenty-first birthdays before immigrant visas became available for them, and determined that those children were ineligible for benefits that came with V visa status, including work permits. In Akhtar v. Burzynski, 384 F.3d 1993 (9th Cir. 2004), however, a case brought by Reeves & Associates, the United States Court of Appeals for the Ninth Circuit held that USCIS’ cancellation of the V visas violated federal law. In response to the Akhtar decision, USCIS allowed child beneficiaries of I-130 immigrant visa petitions, who turned twenty-one while their petitions were pending, to receive extensions of their V visa status, and to remain in the United States with their families while their petitions were pending.

Despite Akhtar, USCIS regulations still appeared to require termination of V visas for child beneficiaries of immigrant visa petitions whose parents naturalized. In its policy memorandum, USCIS clarified its earlier policies, by specifying that an adult holder of a V visa could not be denied an extension of their V visa status, simply because his or her petitioning parent naturalized.