Ever since we reported about the 5th District Court’s more liberal interpretation of the CSPA, there have been questions about how to benefit from that Circuit’s ruling. If the F2B petitioner moved to a state within the 5th district, would that allow faster processing of >21 children in Vietnam who did not qualify for the CSPA?
We need to remember that the CSPA was not created by the 5th circuit. The law was passed by Congress. After that, it has been the responsibility of each District Court in the US to interpret the CSPA law. This is the nature of most laws. They are interpreted differently by different courts.
The main point of argument is the “Automatic Conversion Provision” of the CSPA. This would allow an F2B petition filed by a parent newly arrived in the US to have the same priority date as that parent’s original F3 or F4 petition.
For Texas, Louisiana and Alabama, the 5th Circuit Court says this is possible. The 9th Circuit, which includes California, and the 2nd Circuit, including New York, say that it is not possible.
We also need to remember that all of the present CSPA litigation in the courts is connected to applicants and petitioners who are already in the US, not to visa applicants in other countries.
The 5th Circuit ruling applied to an >21 F2B applicant who was already in the US. And, the parent of this F2B applicant filed the petition at the US CIS Service Center in Texas, within the 5th Circuit Court’s jurisdiction.
What can be done if the F2B child is still in Vietnam and if the parent filed the petition in a state that is not within the 5th Circuit? Can that F2B somehow receive the original filing date of the parent’s F3 or F4 petition?
No one knows if CIS would allow a recapture of the F3 or F4 priority date if the F2B applicant is outside the US and if the sponsor moved to Texas after the F2B was filed in some other district. No one has tried it before.
However, one of our clients recently moved to Texas after filing an F2B in California. We are assisting him in trying to expedite the F2B processing. Will the CIS Texas Service Center agree to give the F2B petition the priority date of the parent’s F3 petition? We will report as soon as we have more information about that.
Finally, we note that this CSPA debate is likely to get to the Supreme Court within a year or two. The decision of the Supreme Court will make the interpretation of the CSPA the same for all applicants, no matter which state or which country they live in.
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Q1. My over-20 son had to stay behind in Vietnam. Now I want to file an F2-B petition. I live in California but can I send the petition to CIS in Texas to take advantage of the 5th Circuit Court’s decision to allow the F2B to get the original filing date of my petition?
A.1. Unfortunately, you must file the petition with the CIS office that has jurisdiction over the place where you live. That means residents of California, Arizona, Nevada, and the north western states must all file their petitions with the California CIS office, which is located in the territory of the 9th Circuit Court.
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Q.2. I want to file an F2-B for my son. Can I use humanitarian reasons to ask CIS to give the F2B the same priority date of my F3 petition?
A.2. We have heard of a couple of cases in which CIS-California allowed the original priority date to be used. It is not clear if this was done intentionally or by mistake. But it never hurts to ask.
ROBERT MULLINS INTERNATIONAL www.rmiodp.com
Immigration Support Services-Tham Van Di Tru
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