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Post image for Aged Out Children Can Now Retain Old Priority Date and Speed Up Immigrant Visa and Green Card Process

The Ninth Circuit in De Osorio v. Mayorkas held that the plain language of CSPA (Child Status Protection Act) unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries.

Before this case, when these beneficiaries aged out prior to their parents becoming permanent residents, a new I-130 petition filed by their parents for them would have a new priority date, which means they would have to wait several years before they can immigrate or apply for a green card, in some cases over ten years. With this decision, the old priority date of the I-130 filed for their parents, for which they were derivative beneficiaries, would be retained. So that new I-130 that the LPR (lawful permanent resident) parent files for the aged-out son or daughter, could have that old 1985 or so priority date, speeding up the immigrant visa or permanent resident (green card) process by over a decade in some categories.

I have come across probably over a hundred consultations over the past three years in which parents have asked about what could be done for their aged-out children. Being Filipino myself, I’ve heard stories from several Filipino F4 (sibling petition) beneficiaries who waited at least twenty two years for their immigrant visas to be approved, only to realize they cannot bring their children, most of whom were just babies when they were first petitioned. In most cases, the honest answer has been to file an I-130 again and wait in line, and “hope” that a new case comes out.

Well, this new case has come out in De Osorio v. Majorkas. The decision in the class-action lawsuit against the United States Citizenship and Immigration Service is a victory for tens of thousands of people who lost their priority status upon turning 21, as their parents faced long waits due to backlogs in the immigration systems. Filipino immigrants for example who were petitioned by their siblings were never able to bring their children with them because the waiting time for priority dates to be current has been over 21 years for a while. So all their children aged-out by the time immigrant visas become available. You can have a one month old child when your brother petitioned for you, wait 22 years for priority dates to be current, and your child will automatically over-age. So you needed to petition your child and wait over a decade again. But with this new case, if that parent files an I-130 for their 25-year old daughter, the I-130 F4 priority date in the 1980s would be retained, which obviously is now current.

Below is a quoted section from the 9th Circuit in their decision, providing you with their summary and the relevant portion of the case.

“Appellants became lawful permanent residents and immigrated to the United States. However, due to visa quotas and a serious backlog, by the time Appellants received their family-sponsored visas, their children were no longer eligible to accompany them as recipients of derivative visas, which are available only to children under the age of twenty-one. Their children had “aged out” of eligibility.

‘The question before us is whether these children are entitled to relief under the Child Status Protection Act (“CSPA”), 8 U.S.C. § 1153(h). The CSPA provides, among other things, that when certain aged-out aliens apply for visas under a new category for adults, they may retain the filing date of the visa petition for which they were listed as derivative beneficiaries when they were children. This ensures that visas are available quickly, rather than requiring the now-adult aliens to wait many more years in a new visa line.

‘The United States Citizenship and Immigration Services (“USCIS”) denied Appellants’ requests for priority date retention under the CSPA. USCIS relied on the Board of Immigration Appeals’ (“BIA”) decision in Matter of Wang, 25 I. & N. Dec. 28 (BIA 2009) that the CSPA does not apply to all derivative beneficiaries. The district court, deferring to the BIA’s interpretation, granted summary judgment to USCIS in two separate cases. We reverse.

‘We conclude that the plain language of the CSPA unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries. The BIA’s interpretation of the statute conflicts with the plain language of the CSPA, and it is not entitled to deference.”

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Post image for BALCA on Employer’s Duty to Interview and Investigate Applicants

BALCA in Matter of Select International Inc. 2011-PERM-01478, held that where a resume showed a broad range of experience, training, and education, the employer had a duty to investigate the applicant given its willingness to accept a “combination of education, training, or experience.”

On February 22, 2007, Select International (“Select”) filed for Permanent Employment Certification (“PERM”) for the position of Industrial /. Organizational Psychologist. On June 22, 2007, the Certifying Officer (“CO”) issued an Audit Notification. Select responded on July 25, 2007. On September 30, 2008, the CO requested a signed affidavit and documentation explaining why it is not feasible to train a worker to qualify for the job opportunity. Select filed its recruitment report and other supporting documentation on February 23, 2009. On February 4, 2010, the CO denied the application because Select rejected three U.S. Citizen applicants for non-lawful job-related reasons. Specifically, the CO stated that three potentially qualified applicants were rejected despite Select’s statement in its ETA Form 9089 that it “will accept any suitable combination of education, training, or experience.” Select filed a request for reconsideration.

PERM regulations require an employer to conduct mandatory recruitment steps in good faith to recruit U.S. workers prior to filing an application for permanent alien labor certification. 20 C.F.R. § 656.17(e). To conduct recruitment in good faith, an employer “must take steps to ensure that it has lawful job-related reasons for rejecting U.S. applicants, and not stop short of fully investigating an applicant’s qualifications.” E. Tenn. State Univ., 2010-PER-00038. “Rejection of one or more U.S. workers for lacking skills necessary to perform the duties involved in the occupation, where the U.S. workers are capable of acquiring the skills during a reasonable period of on-the-job training, is not a lawful job-related reason for rejecting the U.S. workers.” Id.

The Employer’s Recruitment Report indicated that eight U.S. workers responded to its recruitment efforts. Regarding applicant Avi Avigdor, Select found that he did not have the required experience, so he was not offered an interview. The CO cited Mr. Avigdor’s 47 months of experience in its denial, and Select argued that they were not related to the position. Mr. Avigdor had a master’s degree in I/O Psychology, was in the process of obtaining his Doctorate in I/O Psychology, had 16 months experience in Organizational Development, 8 of which was in a similar position to Select’s, and also has experience using SPSS. BALCA stated that if an applicant’s resume demonstrates a broad range of experience, education, and training, such that it is reasonably possible that he or she is qualified for the job, the employer has an obligation to further investigate the applicant’s credentials beyond the face of the resume. BALCA in this case found that Select had the duty to investigate his qualifications further, and thus affirmed the denial of the labor certification.

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October 2012 Visa Bulletin Falls Below Expectations

by JP Sarmiento on September 15, 2012

The October 2012 Visa Bulletin was released on September 10, 2012. October is the start of the fiscal year for immigration purposes. As you may know, the EB2 employment category retrogressed a few months ago, including those in “other countries”, which has almost always been current.

Dates for EB2 India is September 1, 2004 and EB2 China is July 15, 2007. “Other countries”, the Philippines, and Mexico all had January 1, 2012 as EB2 priority dates. These are way under the predictions made for the October priority dates. The expectation for India prior to this release was 2007,  3 years less. For Indians under the EB2 category, in order to apply for a green card, or, if pending, for their green card applications to be adjudicated, the I-140 priority date should be September 1, 2004 or earlier.

Porting from EB3 to EB2 has increased the number applicants for EB2 India, putting the priority dates way back. The demand data which was released on September 10 shows that for EB2 India, there are 1,350 applicants with a priority date before January 1, 2007, 5,500 before January 1, 2008, and 20,000 before January 1, 2009.

Source: www.travel.state.gov

 

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Some people can apply for a green card despite overstaying their status, such as those who are legal entry overstays who apply for a green card based on marriage to a US Citizen, or those who are applying based on employment, overstayed their status, but benefit from Section 245i. When you have a green card application pending, you may apply for advance parole, a travel document that in theory permits you to travel and reenter the United States. So those who overstayed and applied for a green card usually still obtain advance parole.

Prior to Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), which we shall discuss in a bit, the Department of Homeland Security’s (DHS) position was that those who departed the U.S. on an advance parole, after incurring unlawful presence of six months or more, would be subject to either the three or ten year bars, and are thus inadmissible. Because of this position, a lot of people who have approved advanced paroles after incurring years of unlawful presence (marriage to a U.S. Citizen or those eligible for adjustment due to INA 245i) were not able to return to the United States due to either the three or ten year bar. Why does the I-131 advance parole get granted when the applicant will be inadmissible anyway? Who knows. Those applicants would’ve been better off had the I-131 been denied, because at least it would have prevented them from traveling abroad. It was a tricky and deceiving aspect of advance paroles and adjustment of status applications for those with unlawful presence issues, especially for those who did not seek legal advice.

But in Matter of Arrabally and Yerrabelly, the Board finally held that a departure under an approved advance parole is not a “departure” for purposes of INA § 212(a)(9)(B) which triggers the three and ten year bars. Thus, those who have over six months of unlawful presence, who are eligible to adjust status in the United States, would now be able to come back on the advance parole without being inadmissible anymore. This is a big decision for those employment-based 245i green card cases by applicants with six or more months unlawful presence. Since visa retrogression has delayed a lot of green card applications, those applicants with unlawful presence issues but are 245i eligible can now apply for advance parole and visit their home countries, without being subject to the three or ten year bars that the DHS used to impose on them upon return prior to this BIA decision.

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On July 20, 2012, the Board of Immigration Appeals (BIA) held that K-4 visa holders could only adjust status based on the I-130 filed by the K visa petitioner, and not on the basis of her own subsequent marriage to a U.S. Citizen.

In Matter of Valenzuela, 25 I&N Dec. 867 (BIA 2012), the respondent came to the U.S. with K-4 visa as a derivative of her mother’s K-3 visa (as the spouse of a United States citizen).  Her mother adjusted her status to that of a lawful permanent resident based on her marriage to the K visa petitioner (U.S. Citizen husband). The respondent also sought to adjust her status based on the visa petition filed on her behalf by the K visa petitioner (Respondent’s step-father).  However, the I-130 petition was denied as a result of the Respondent’s failure to attend the interview. Later, she married her U.S. citizen husband, and she sought to adjust her status again based on marriage to a U.S. citizen.  However, the Immigration Judge denied her adjustment application because she is ineligible to adjust her status on any basis other than I-130 filed by the K visa petitioner (her step-father in instant case).

The issue was whether a derivative of a K visa (K-4 visa holder) may adjust her status to that of a lawful permanent resident based on her own subsequent marriage to a U.S. citizen.  The BIA concluded that the statute clearly bars the adjustment of K visa derivative through a different petition.  The BIA held that “if the respondent were correct that a K visa derivative beneficiary is eligible to adjust through a different petitioner, then a K visa derivative would be in a better position than the principal K visa holder.”  The BIA also added that they cannot presume that one type of petitioner may be substituted for another in order to make an alien eligible for adjustment of status.

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Our Associate Attorney, Sung Hee (Glen) Yu, Esq. was invited to talk about the practice of immigration law practice and his professional experience at the Third Annual Case Western Midwest APALSA (Asian Pacific American Law Students’ Association) Conference last February 18, 2012.

This year’s conference entitled “Building Your Niche: Creating a Professional Identity in Practice and Beyond,” was designed by law students in light of the challenging employment market. APALSA members sought to put on a conference that focused on the expansive opportunities that a Juris Doctor can open up for students, law related or otherwise.  Over twenty-five attorneys, professors, and other professionals were invited to attend and share their experiences. More than 80 law students attended this all day conference.

Mr. Yu, a Case Western Law School alum, was invited to speak at the Immigration Law Breakout sessions with two other immigration attorneys.  He discussed various issues common to the practice of immigration law and shared his experiences in handling employment-based, family-based, and deportation and removal cases. He also offered advice on how to find internships and employment in immigration law firms and other jobs related to the field.

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The Reentry Permit is a travel document issued to Lawful Permanent Residents who wish to travel for over six months. Federal regulations require permanent residents to be physically present in the United States when the application is filed.  Once the application is filed, the applicant may depart the United States, and the approved document can be delivered abroad. The applicant may also wait for the reentry permit before leaving.

Currently, applicants of reentry permits may request expedited service in cases that fall under one of the following categories:

  • Severe financial need to the company or individual
  • Extreme emergency situation
  • Humanitarian situation
  • Non-profit status of requesting organization in furtherance of the cultural and social interests of the United States
  • Department of Defense or National Interest Situation (Note: Request must come from official United States Government entity and state that delay will be detrimental to our Government)
  • USCIS error
  • Compelling interest of USCIS

The application also requires that biometrics be completed, and as a practical matter, the applicant must be physically present in the United States to complete the biometrics.  This has led to difficulties in some cases where an applicant needs to leave as soon as possible.

In response to this biometrics issue, the USCIS recently announced new guidelines for expeditious biometric appointment requests:

  • If the applicant needs expedited processing, the Form I-131 instructions provide specific information for submitting pre-paid express mailers with your Form I-131 for USCIS to send your receipt and ASC appointment notice, as well as the completed re-entry permit or refugee travel document, if approved.  A request for expedited processing should contain the applicant’s reasons for such processing so that the USCIS may determine whether the applicant qualifies for expedited processing.
  • If the applicant must attend an ASC appointment (fingerprint appointment) in 14 days or less, the applicant may provide an email address or fax number, then the Nebraska Service Center will be able to fax the ASC appointment to the applicant.  The ASC will accept a duplicate copy of the appointment notice.
  • If the applicant needs to expedite the I-131 after filing, then the applicant should contact the customer service phone number or make an INFOPASS appointment at their local USCIS office.

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On November 29, 2011, Congress passed H.R. 3012 (The Fairness for High-Skilled Immigrant Act) by a vote of 389-15 with no additional amendments.  The measure now moves on to the Senate for consideration. The Fairness for High-Skilled Immigrant Act was introduced on September 22, 2011 by Rep. Chaffetz (R-UT) to eliminate the employment-based per-country cap entirely by fiscal year 2015 and raises the family-sponsored per-country cap from 7% to 15%.

This passed Bill aims to move away from the current law, under which immigrants from an individual country who are in the U.S. on an employment visa such as an H1-B cannot apply for more than seven per cent of the 140,000 green cards issued annually by the State Department. The Act ultimately eliminates this per country percentage cap. What this implies is that countries that are facing the highest demand-supply mismatch for green cards, among which India ranks first and China second, then Mexico and the Philippines will see a benefit in terms of prospective green card issuance (shorter waiting time for priority dates to be current), whereas the waiting time for other nations would be significantly longer.

Therefore, the Act greatly will improve the processing times for Indian and Chinese green card applicants.  However, an unintended consequence of the Act likely would be the slower processing times for natives of other countries.

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On November 7, 2011, the USCIS published a policy memorandum regarding the priorities that they will follow in placing certain immigrants in removal proceedings through the Notice to Appear).

This newly issued policy memo provides guidance to USCIS officers on how to initially issue the NTA.  The policy memo states that cases involving fraud, serious crimes, categorized as aggravated felonies under the Immigration and Nationality Act, (murder, rape, sexual abuse of minors, possession and/or trafficking in illicit firearms and explosives, crimes of violence, ransom, child porn, human trafficking, drug trafficking, alien smuggling, human rights violators, gang members, and re-entry after a prior deportation), and threats to national security will be the top immigration enforcement priority. Other cases are categorized as “non-egregious public safety” cases. Depending on the circumstances of each case, the policy memo requires the USCIS to follow a complicated referral procedure where USCIS will refer the case to ICE first and let ICE decide whether it is worth their while to pursue. Absent a finding by ICE, USCIS will not issue an NTA in those cases. In other cases, USCIS may automatically refer the cases for an NTA.

Also, under this new policy, USCIS will issue NTAs where required by statute or regulation.  For example, such cases include termination of conditional permanent resident status, denials of form I-751 petitions, denials of form I-829 petitions by entrepreneurs to remove conditions, termination of refugee status, denials of NACARA 202 and HRIFA adjustments, referrals of asylum cases to immigration court, and when an asylum applicant withdraws his/her application.  USCIS will also issue an NTA if a Statement of Findings substantiating fraud is part of the record.

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According to 8 C.F.R 1.1, the term arriving alien means “an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry. An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked.”  Under the current regulations, the USCIS can adjudicate an adjustment of status application of a parolee with a final order. Under the amended jurisdictional provisions of the interim regulations, USCIS has been given jurisdiction over the adjustment applications of all arriving aliens regardless of whether they are in removal proceedings, with a limited exception for certain advance parolees not relevant to this practice advisory. Specifically, the amended regulations grant USCIS “jurisdiction to adjudicate an application for adjustment of status filed by any alien, unless the immigration judge has jurisdiction to adjudicate the application under 8 C.F.R. § 1245.2(a)(1).” 8 C.F.R. § 245.2(a)(1). The regulations strip an immigration judge of jurisdiction over the adjustment application of an “arriving alien” in proceedings. 8 C.F.R. § 1245.2(a)(1). Consequently, since the immigration judge does not have jurisdiction over such applications, USCIS does, in accord with this regulation. See also 92 Fed. Reg. at 27587 (explaining that one purpose of the amendments to the regulations is to make clear that USCIS has jurisdiction over the adjustment applications of “arriving aliens” in proceedings).

The main issue in Freire case is whether the BIA abused its discretion in denying Freire’s Motion for Remand or Continuance while he sought adjustment of status before the USCIS.  The Second Circuit held that although IJs and the BIA do not have jurisdiction to adjudicate most arriving aliens’ applications for adjustment of status, it does not prevent IJs or the BIA from adjudicating motions for continuance in removal proceedings over which they already have jurisdiction. Though the Second Circuit finds no reason why the request was not granted, it remanded the case to the BIA to at least provide adequate reasons for their refusal. The Second Circuit vacated the decision, and the case is remanded to the BIA.

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