The CSPA and the Children Left Behind

Thứ Tư, 02 Tháng Mười Một 201100:00(Xem: 57213)
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.

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