CSPA Class Action Lawsuit: What's at Stake?

Please note: This blog post was originally published on Thursday, July 5, 2012.

On June 19, 2012, Attorney Nancy Miller and I argued in favor of the rights of a class of immigrant families before an 11-judge panel of the U.S. Court of Appeals for the 9th Circuit. The outcome of our CSPA class action lawsuit could favorably impact the lives of many thousands of families.

Many immigrant families are asking what this lawsuit means to them. Let me explain.

The plaintiffs are persons who immigrated to the U.S. through either their brothers or sisters (family-based 4th preference category) or one of their parents (family-based 3rd preference category). The issue is whether their sons and daughters will be able to immigrate together with their parents.

Traditionally, when a child turned 21 years of age, he no longer was eligible to immigrate to the U.S. together with his parents. The parents, once they become permanent residents, have the option of sponsoring their aged-out unmarried sons and daughters under the family-based 2B preference category. However, this entailed years, or even decades, of separation. Congress passed the Child Status Protection Act (CSPA) in 2002, in part, to solve this problem and to prevent the separate of parents from their sons and daughters.

CSPA provides that the length of time that the visa petition was pending is subtracted from the child’s age on the date that the priority date becomes current. If the resulting age is under 21, the son or daughter can immigrate together with his parents. CSPA further provides that if the child’s CSPA age is 21 or over, he “retains” the “priority date of the original petition” which “automatically converts” to the “appropriate category”.

The meaning of the above words and phrases is very clear. The priority date of the original petition is the date that the 3rd or 4th preference visa petition was submitted. The appropriate category is the family-based 2B category since the child is now the unmarried adult son or daughter of a permanent resident. This enables any period of family separation to be either shortened or eliminated.

The government disputes this by relying on the clearly erroneous decision of the Board of Immigration Appeals in Matter of Wang which held, in a two-sentence “analysis” of CSPA, that the language of CSPA is ambiguous, and that “retention” and “automatic conversion” are terms of art which are to be construed in such a restrictive fashion that no additional families would be united by this subsection of the law. Wouldn’t this render the clause be completely meaningless? No, says the government. The benefit would be that some immigrant families would no longer have to submit an additional petition for their child. Quite a “meager benefit”, concluded the U.S. Court of Appeals for the 5th Circuit in Khalid v. Holder. We agree. If the 9th Circuit concurs, the automatic conversion clause will lead to the reunification of families who immigrate in any of the family and employment-based categories, as well as those who immigrate through the diversity visa lottery.

Here are two examples of how the automatic conversion clause would work:

1. Mr. and Mrs. Santos, both citizens of the Philippines, were sponsored by Mrs. Santos’ sister, a U.S. citizen, on January 27, 1989. Their priority date became current on July 1, 2012. They have 3 children, born in 1988, 1992, and 1996. The sister’s visa petition was approved in one month. Therefore, their children, the oldest of whom was 1 year old, and other two, not even born when the petition was submitted, are now aged 24, 20 and 16. The younger two children can immigrate together with their parents. The oldest child, who is still unmarried, would benefit by the automatic conversion clause. She would be given credit for the 23 years that she stood in line together with her parents waiting for her green card. As soon as her parents become lawful permanent residents, her category would automatically convert to the family-based 2B category, and she would be permitted to immigrate to the U.S. and rejoin her family.

Under the government’s interpretation of the law, she would lose her priority date, and her parents would have to sponsor her in the 2B category, and she would have to wait, unmarried, for 32 years in order to get her green card and rejoin her family. The situation would be even worse for children born in Mexico, where the real wait for a person in the 2B category exceeds 115 years!

2. Mr. and Mrs. Patel, both citizens of India, have lived in the U.S. for 9 years, and have two children, a son of 18 who was born in India and a daughter of 6 who was born in the U.S. Mr. Patel, who graduated from a university in the U.S. in computer science, changed his immigration status from F-1 student to H-1B professional. His employer sponsored him for a green card in 2008 under the employment-based 3rd preference category. The PERM application has been approved and the USCIS approved the I-140 petition in 6 months. Since the EB-3 category for Indians has been stuck in 2002 for some time now, it is very possible, indeed probable, that their son will age-out before his priority date becomes current. However, as long as the Court interprets the automatic conversion clause as a benefit to prevent the prolonged separation of families, their son will be able to retain his 2008 priority date and will automatically convert to the 2B category when his parents become permanent residents. He may be able to adjust his status soon after his parents do so as long as he remains unmarried.

Should the government prevail in this lawsuit, he will be forced to go to the back of the line, and wait, unmarried, for over 10 years in order to become a permanent resident.

A note of caution: No matter how the judges of the 9th Circuit Court of Appeals rule on this matter, the losing side may ask the Supreme Court of the United States to review this decision. Should this occur, the proper interpretation of this provision of CSPA will not be decided until 2013 and no families would benefit in the meantime.

CSPA: 9th Circuit Will Decide Whether Immigrant Families Will Be Reunited

Please note: This blog post was originally published on Friday, June 22, 2012.

On June 19, together with Attorney Nancy Miller, I appeared before an en banc panel (11 judges) of the U.S. Court of Appeals for the 9th Circuit to argue in favor of a provision of the Child Status Protection Act (CSPA) which Congress meant to allow nuclear families to remain together during what can be a long and tedious immigration process. The video of the oral arguments is available online.

This CSPA class action lawsuit will affect tens of thousands of immigrant families from every country in the world, but especially those from countries with long backlogs in the family and employment preference categories like Mexico, the Philippines, India, and China.

Before CSPA was enacted, whenever a child of intending immigrants turned 21 years of age, he was said to have “aged-out” and could no longer immigrate to the U.S. together with his parents, this despite the fact that he may have patiently stood in line with his parents for 10 or even 20+ years.

In order to correct this unfair result and avoid separating families, Congress passed CSPA in 2002. One section of CSPA allows the child to subtract the time that the I-130 or I-140 was pending from his age when his priority date became current. Say that the priority became current on his 25th birthday, and the visa petition was pending 5 years. Under this formula, the child’s CSPA age is 25 minus 5, or 20 years old. Thus, CSPA allows him to immigrate together with his parents.

Of course, no child has any control over how long the USCIS takes to approve his visa petition. This is simply a matter of luck, the longer the better for purposes of this formula. Using the example above, let’s say that the visa petition was pending only 1 year instead of 5. In this example, his CSPA age would be 25 years minus 1, or 24 years old. By virtue of luck, the child whose petition was pending 5 years can immigrate together with his parents, while the child whose petition was only pending one year can not. This makes no sense.

Couldn’t the parents sponsor the unfortunate son after they obtain permanent residence? They could do so under the family-based 2B category, unmarried adult sons and daughters of lawful permanent residents. But when you do the numbers, and look at how many people are waiting in the 2B line, you quickly learn that it would take a Filipino son over 32 years to join his parents in the U.S., and for Mexico (Are you ready for this?), over 115 years!

Fortunately, Congress recognized this problem when they drafted the law, and added a second part to the formula. When a child’s age is determined to be over 21 years old in part one of the formula, his petition automatically converts to the 2B category, and he is allowed to “retain” the priority date of the original petition. Therefore, if the original petition was submitted 20 years ago, the child gets credit for the time that he stood in line side-by-side with his parents, and may be able to immigrate either together with his parents or soon thereafter.

Unfortunately, the government ignores the plain language of CSPA, and insists that given this constitutes “jumping to the front of the line”, conveniently ignoring the fact that the child has waited in line for many years. And at the oral arguments, it was apparent that a least one or two of the judges may agree with the government’s position. It is curious, however, that the two agency regulations that the government cites in its brief both give immigrants credit for the time that they stood in line in one category although they are immigrating in another category. Apparently, the government believes that consistency is “the hobgoblin of small minds”.

It may take a few weeks, or even a few months, for the Court to issue its decision. And the losing side will be able to ask the Supreme Court to review the 9th Circuit’s decision.

Meanwhile, thousands of immigrant parents will remain separated from their sons and daughters.

The Government Declares War on Employers

Please note: This blog post was originally published on Saturday, May 5, 2012.

Government I-9 audits are spreading like the plague.

These silent raids have increased from virtually zero under the previous administration to over 7,500 under President Obama.

The number of employers arrested by ICE for criminal immigration violations this year is over 100 and we are only in May. The amount of administrative fines levied against employers in 2012 is quickly approaching $5,000,000.

In the words of Senator Dianne Feinstein (D-CA), these I-9 audits  “are going to decimate our farms and farm-dependent jobs”.

And it isn’t just farms. Who does our gardening, takes care of our kids and our elderly parents, and staffs our restaurants and hotels? 

When politicians, particularly those on the far right, rail against “illegal aliens”, they conveniently ignore the immigration status of those who wait on them, cook for them, park their cars, and pick their fruits and vegetables.

Employers are not so lucky. 

Under President Bush, there would be a big immigration raid every few months with hundreds of workers arrested for using fake documents, prosecuted, jailed, and deported. Deported only to return in a few days or weeks.

Under President Obama, it is the employers who must pay the piper. Few employers are farsighted enough to hire an attorney to perform an audit of their I-9 forms before they receive a Notice of Inspection from U.S. Immigration and Customs Enforcement (ICE). However, once ICE descends on an employer, frantic phone calls are made to immigration lawyers. Often, this is too little, too late. Many employers, even those who faithfully follow the I-9 requirements, are forced to fire a substantial portion of their workforce.

What is the answer to this government-enforced madness?

Representative Lamar Smith (R-TX), Chairman of the House Judiciary Committee, advocates the Big Government approach. Instead of I-9 forms, “we should replace this outdated system with E-Verify, a successful Web-based program that quickly identifies illegal immigrants working in the U.S…”

Even for true believers who think that E-Verify works with amazing accuracy and limited intrusion into the workplace, it ought to be obvious that one significant result of making this system mandatory would be that millions of people would lose their jobs.

And who then would do the work that makes our economy run? Would unemployed Americans work the fields? How many laid off workers would take a job making beds at a hotel or washing plates in a restaurant?

Immigration enforcement, never mind mandatory E-Verify, without Comprehensive Immigration Reform, would further cripple our still sputtering economic recovery.

Take it from a former INS prosecutor, our present immigration policies have about as much chance of succeeding as did Prohibition in the 1920s.

CSPA: 9th Circuit Grants Petition For Rehearing En Banc

Please note: This blog post was originally published on Saturday, April 21, 2012.

On April 20, 2012, the U.S. Court of Appeals for the 9th Circuit granted our Petition for a Rehearing En Banc in De Osorio v. Napolitano.

The issue in this case is whether a child, who is a derivative beneficiary of a visa petition, who ages-out before his priority date becomes current may retain the priority date of the original petition and automatically convert to the family-based 2B category. In most cases, this allows the child to immigrate to the U.S. together with his parents.

The government maintains that the child is not entitled to any credit for all of the years that he waited in line, and must go to the end of the line in the 2B category, and wait another 8 to 20 years for his priority date to become current. If he marries during this period, his priority date is lost forever.

This restrictive reading of the statute is, however, directly contrary to the statutory language of the Child Status Protection Act (CSPA) and to the intent of the law. CSPA was enacted in order to keep immigrant families intact despite family-based and employment-based waiting times which can range up to 22 years or more.

Section 3 of CSPA is entitled “Treatment of Certain Unmarried Sons and Daughters Seeking Status as Family-Based, Employment-Sponsored and Diversity Immigrants”. It is composed of a number of subsections, the first three of which are relevant to our case:

Subsection 1 establishes a formula by which the length of time that a visa petition is pending is subtracted from the child’s age. This protects many children from aging-out if they reach the age of 21 before their priority dates become current.  For example, a 24-year-old who is the derivative beneficiary of a visa petition that was pending for 4 years is considered to be 20 years of age, and may immigrate together with his parents.

Subsection 2 defines which petitions are covered by this paragraph. These include visa petitions filed under the family-based 2A category and all petitions for which the child is a derivative beneficiary.

Subsection 3 is entitled “Retention of Priority Date”, and describes what happens when a child’s age is determined to be 21 years of age or older after the subtraction formula in Subsection 1 has been applied. It provides that “…his petition shall be automatically converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”

To understand how this works, let’s take the following example:

One of our plaintiffs, Elizabeth Magpantay, and her family were sponsored for green cards by her U.S. citizen father in January 1991. The visa petition was approved within 2 months. However, their priority dates did not become current until nearly 15 years later, in December 2005.

During this waiting period, her children turned 21 years of age: Melizza in 1999, Ricardo in 2001, and Christine in 2005. Subtracting the 2 months that the visa petition was pending from their ages did not prevent them from aging-out. In 2006, Elizabeth and her husband immigrated to the U.S., and were forced to leave Melizza, Ricardo, and Christine behind in the Philippines.

In 2007, Elizabeth filed visa petitions for her children under the family-based 2B category. Relying on CSPA, she requested that her children retain the 1991 priority date of the original petition. The government denied her request and gave them 2007 priority dates. Since there is currently a 10-year wait under the 2B category for Filipinos, Melizza, Ricardo, and Christine would have to remain unmarried and wait until 2017 in order to join their parents in the U.S.

In seeking to justify this decision, the government relies on erroneous conclusions reached in 2009 by the Board of Immigration Appeals (BIA) in Matter of Wang. Wang held that the language of CSPA with regard to what petitions are covered in subsection 3 above is ambiguous, and that the legislative history indicates that CSPA is concerned only with administrative delays, not with delays caused by the operation of the Visa Bulletin. However, as we have explained in previous articles, and as the U.S. Court of Appeals held in Khalid v. Holder, 655 F.3d 363 (2011), the language of the statute is unambiguous: subsection 3 applies to all derivative beneficiaries of family-based and employment-based visa petitions. Futhermore, Matter of Wang improperly disregards regulations and portions of the legislative history which do not support its erroneous conclusions.

The 9th Circuit Court of Appeals has agreed to rehear our class action lawsuit during the week of June 18, and we are very hopeful that a positive outcome will result, not just for our plaintiffs, but for all immigrant families.

May Visa Bulletin Brings Bad News

Please note: This blog post was originally posted on Sunday, April 10, 2012.

There is little good news, but a lot of bad news, in the May 2012 Visa Bulletin.

The worldwide family categories all advance modestly, from 3 to 5 weeks. For persons born in Mexico and the Philippines, many of the categories fail to advance at all.

The worldwide EB-3 category moves forward 3 weeks while the other worldwide employment categories remain current.

The big news is that the EB-2 category for persons born in mainland China and India, retrogresses 3 years back to August 15, 2007, and that no relief can be expected until the new fiscal year begins on October 1, 2012.

Here is how the government describes the situation in the Visa Bulletin:

D. RETROGRESSION OF THE CHINA-MAINLAND AND INDIA EMPLOYMENT SECOND PREFERENCE CUT-OFF DATE

“Due to the rapid forward movement of the cut-off date, demand for China and India Employment Second preference numbers has increased dramatically during recent months, and at a much faster rate than had been expected. Therefore, it has been necessary to retrogress that cut-off date to August 15, 2007 in an attempt to hold number use within the annual limit while maintaining availability for those countries that have not yet reached their per-country limit. Notices were included in the November, January, and February Visa Bulletins alerting readers to the possibility of such a retrogression. While corrective action has become necessary earlier than was anticipated based on the information available at the time cut-off dates were determined, it is hoped that readers are not caught off guard by this retrogression.

“Should additional information regarding potential demand become available, it may be necessary to take additional corrective action at any time.

“Every effort will be made to return the China and India Employment Second preference cut-off date to the previously announced April date of May 1, 2010. This will be done as quickly as possible under the FY-2013 annual limits, which take effect October 1, 2012. It will not be possible to speculate on the cut-off date which may apply at that time until late summer.”

USCIS has indicated that it will continue accepting China and India Employment Second preference I-485 filings based on the originally announced April cut-off date.

FAMILY CATEGORIES

Categories	Worldwide	China (PRC)	Mexico	Philippines
1st	5-01-05	5-01-05	5-15-93	7-1-97
2A	11-15-09	11-15-09	10-15-09	11-15-09
2B	2-22-04	2-22-04	12-01-92	12-08-01
3rd	3-08-02	3-08-02	1-15-93	7-22-92
4th	12-01-00	11-22-00	6-01-96	1-22-89

 

EMPLOYMENT CATEGORIES

Categories	Worldwide	China (PRC)	India	Mexico	Philippines
1st	Current	Current	Current	Current	Current
2nd	Current	8-15-07	8-15-07	Current	Current
3rd	5-01-06	4-01-05	9-08-02	5-01-06	5-01-06
Unskilled	5-01-06	4-22-03	9-08-02	5-01-06	5-01-06
4th	Current	Current	Current	Current	Current
Religious	Current	Current	Current	Current	Current
5th	Current	Current	Current	Current	Current

April 2012 Visa Bulletin

Please note: This blog post was originally published on Saturday, March 10, 2012.

On March 9, the State Department released the April 2012 Visa Bulletin.

The worldwide family-based categories advanced between 4 and 10 weeks, while the employment-based (EB) categories barely budged.

For the worldwide family-based categories, the 1st preference category (unmarried adult sons and daughters of US citizens) advanced 8 weeks, the 2A preference (spouses and children of lawful permanent residents)  moved forward 10 weeks, the 2B category (unmarried adult sons and daughters of lawful permanent residents) advanced 8 weeks, the 3rd preference category (married sons and daughters of US citizens) moved ahead 6 weeks, and those in the 4th preference category (brothers and sisters of US citizens) saw a 4-week advance.

However, for persons born in Mexico and the Philippines, many categories failed to advance at all, and none moved forward more than 2 weeks.

FAMILY CATEGORIES

Categories	Worldwide	China (PRC)	Mexico	Philippines
1st	4-01-05	4-01-05	5-08-93	6-22-97
2A	10-08-09	10-08-09	9-01-09	10-08-09
2B	1-15-04	1-15-04	12-01-92	12-08-01
3rd	2-15-02	2-15-02	1-15-93	7-22-92
4th	11-08-00	11-08-00	6-01-96	1-08-89

The April 2012 Visa Bulletin was downright depressing for those in the employment-based categories.  EB-2 China and India remain frozen in time, and are likely to regress in coming months. In the worldwide EB-3 category for professionals, skilled, and unskilled workers, the numbers moved forward only 3 weeks, and only 1 week for persons born in India. The sole significant advance occurred in the EB-3 category for professionals and skilled workers born in mainland China, where the numbers moved forward 8 weeks.

EMPLOYMENT CATEGORIES

Categories	Worldwide	China (PRC)	India	Mexico	Philippines
1st	Current	Current	Current	Current	Current
2nd	Current	5-01-10	5-01-10	Current	Current
3rd	4-08-06	3-01-05	9-01-02	4-08-06	4-08-06
Unskilled	4-08-06	4-22-03	9-01-02	4-08-06	4-08-06
4th	Current	Current	Current	Current	Current
Religious	Current	Current	Current	Current	Current
5th	Current	Current	Current	Current	Current

See the entire visa bulletin including information about about the movement of the green card lottery numbers.