The CSPA and the Children Left Behind

Thứ Tư, 02 Tháng Mười Một 201100:00(Xem: 57069)
The CSPA and the Children Left Behind
The CSPA and the Children Left Behind 
 
After the CSPA was introduced in 2002, thousands of children over 20 were able to accompany their parents to the US. But, the question remains, what about the over-20 children who do not qualify for the CSPA?

For most of the time since 2002, if a child was left behind in Vietnam because he did not qualify for the CSPA, the parents filed a new petition for the child after they arrived in the US. However, that new petition received a new priority date, and that means the child had to remain in Vietnam for at least 7 or 8 more years.
 
In August, we reported that motions had been filed in several district courts, to ask CIS to give the parents’ original filing date to new petitions filed for the children left behind. If these court cases are successful, after the parents arrive in the US they could file F2B petitions and receive the same priority date as their old petitions. This would eliminate the waiting time for their over-20 children left behind.
 
On September 8th, the U.S. Circuit of Appeals for the 5th Circuit, in a unanimous decision, ruled that the petitions filed for the left-behind children can get the original priority date of their parents’ petition. However, we need to understand that this ruling was only for the 5th Circuit Court of Appeals, covering Texas, Louisiana and Mississippi.
 
California is located in the district of the 9th Circuit Court. The 9th Circuit Court and the 2nd Circuit covering New York, are still very conservative and they still say that the F2-B petitions cannot get the original filing date of the parents’ petition.
 
 This favorable 5th Court ruling was in the case of Khalid, a native of Pakistan who entered the U.S. as a ten-year-old visitor in June 1996. In January 1996, his aunt, a U.S. citizen, had submitted a visa petition under the 4th preference family category sponsoring his mother and her family for green cards. However, by the time that the petition became current in February 2007, Khalid was 22 years of age and did not qualify for CSPA.
 
In 2007, Khalid’s mother filed an F-2B visa petition and requested that her son be granted the June 1996 priority date. The USCIS denied his mother’s request and the government then placed Khalid under removal proceedings. The Board of Immigration Appeals also refused to give him a favorable ruling.
 
However, when the family brought the case to the 5th Circuit Court, that court stated that the purpose of CSPA is to “provide age-out protection for aliens who were children (under 21) at the time that a petition for permanent resident status was filed on behalf of their family.”
 
The simple and compelling logic of the 5th Circuit Court's analysis and decision in this case provides ample reason for both the 2nd and 9th Circuits to reconsider their restrictive interpretations of CSPA. At the very least, the split in the Circuits will elevate this important issue to the Supreme Court to decide.
 
------------------------------------------------------------------------------------------------------------------
Q.1. How long will it take this matter to reach the Supreme Court?
 
A.1. It may be 2 or 3 years until the Supreme Court decides

-----------------------------------------------------------------------------------------------------------
 
Q.2. My over-20 son had to stay behind in Vietnam. Now I want to file an F2-B petition. Can I file the petition with 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.2. 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.
 
-------------------------------------------------------------------------------------------------------------
 
Q.3. I want to file an F2-B for my son. Can I ask CIS for the original filing date of my petition, based on humanitarian reasons?
 
A.3. 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

9070 Bolsa Avenue, Westminster CA 92683 (714) 890-9933 
779 Story Road, Ste. 70, San Jose, CA 95122 (408) 294-3888 
6930 65th St. Ste. #105, Sacramento CA 95823 (916) 393-3388 
42 Dang Thi Nhu, P. Nguyen Thai Binh, Q1, HCM (848) 3914-7638
Thứ Tư, 28 Tháng Giêng 2015(Xem: 18490)
The U.S. Department of State, National Visa Center (NVC) plays a key role in applications for immigrant visas that are processed by the US Consulate in Saigon.
Thứ Năm, 22 Tháng Giêng 2015(Xem: 14446)
EB-5 requirements for an investor in a Regional Center are essentially the same as in the basic EB-5 investor program.
Thứ Tư, 14 Tháng Giêng 2015(Xem: 14789)
The EB-5 program gives visas to foreigners who are willing to invest at least $500,000 in approved projects.
Thứ Tư, 07 Tháng Giêng 2015(Xem: 17487)
According to the latest statistics from the US Department of State, 4.3 million immigrant visa applicants worldwide are waiting for their cases to be eligible for visa interviews.
Thứ Hai, 29 Tháng Mười Hai 2014(Xem: 14805)
According to the latest report from the Congressional Research Service, Vietnam is Number 4 in the list of top countries with immigrants waiting for admission to the US in the Family based quota categories.
Thứ Ba, 23 Tháng Mười Hai 2014(Xem: 14327)
If you are in the U.S., married to a Permanent Resident, and your visa petition is current, can you apply for a Green Card while in the U.S. ?
Thứ Sáu, 19 Tháng Mười Hai 2014(Xem: 20275)
A CIS interview is most difficult for a person who has come to the US on a visitor or student visa, and then meets and marries a US citizen within a few months of arriving in the States.
Thứ Năm, 11 Tháng Mười Hai 2014(Xem: 14119)
An alien spouse who was admitted to the United States in a non-immigrant category, and who is not out of status, may apply for a Green Card if he or she is eligible to receive an immigrant visa and one is immediately available.
Thứ Ba, 02 Tháng Mười Hai 2014(Xem: 14179)
In general, the Executive Actions apply only to people who are in the US now and who are out of status.
Thứ Tư, 19 Tháng Mười Một 2014(Xem: 14724)
Until you receive approval from USCIS, do not assume the status has been approved, and do not change your activity in the United States.