FOREIGN MEDIA REPRESENTATIVES: HOW TO BE AN “I” VISA HOLDER IN THE U.S. NPZ LAW GROUP, P.C. Attorneys Ridgewood New Jersey

Are you a photographer, writer or individual who works for a foreign media organization? Are you interested in coming to the U.S. to write stories or cover an event or to provide media support to your organization? Well, if so, the Media Visa (I Visa) may be for you.

The nonimmigrant visa for representatives of the foreign media temporary traveling to the U.S. is known as the media (I) visa and is available to those media representatives who need to travel temporarily to the U.S. to engage in their profession while having their home office in a foreign country. The U.S. reciprocates similar procedures and fees under immigration law that relate to the policies of the traveler's home country. There are very specific requirements which must be met by applicants to qualify for the media visa under U.S. immigration law.

To qualify for a media (I) visa, applicants must meet specific requirements and the consular officer will determine their eligibility.

Media visas are for "representatives of the foreign media," including members of the press, radio, film or print industries, whose activities are essential to the foreign media function, such as reporters, film crews, editors and persons in similar occupations, under U.S. immigration laws, traveling to the U.S. to engage in their profession.

The I visa is granted for "D/S" or "duration of status". This means that as long as the individual granted the I visa is in the U.S. and performing the functions as a media representative, they are allowed to remain. Also, since the visa is D/S the visa holder does not accrue unlawful presence as there is no date certain on the I-94 that is provided to them when they enter the U.S.

The qualifying activity that the applicant will engage in must be essentially informational, and generally associated with the news gathering process, reporting on actual current events. Again, the consular officer will determine the validity and eligibility of the activity as qualifying. Examples of qualifying activities include but are not limited to:

• Reporting on sports events.
• Primary employees of foreign information media engaged in filming a news event or documentary.
• Members of the media engaged in the production or distribution of film (but will only qualify for a media visa if the material being filmed will be used to disseminate information for news. Additionally, the primary source and distribution of funding must be outside the U.S.)
• Journalists working under contract. Persons holding a credential issued by a professional journalistic organization, if working under contract on a product to be used abroad by any information or cultural medium to disseminate information or news not primarily intended for commercial entertainment or advertising. A valid employment contract is required.
• Employees of independent production companies when those employees hold a credential issued by a professional journalistic association.
• Foreign journalists working for an overseas branch office or subsidiary of a U.S. network, newspaper or other media outlet if the journalist is going to the U.S. to report on U.S. events solely for a foreign audience.
• Accredited representative of tourist bureaus, controlled, operated or subsidized in whole or in part by a foreign government, who engage primarily in disseminating factual tourist information about that country, and who are not entitles to A-2 visa classification.
• Technical industrial information. Employees in the U.S. offices of organizations, which distribute technical industrial information.

The Application Process

First, if the applicant is between the ages of 14 and 79, he or she must make an appointment for interview. Persons aged 13 and younger, or 80 and older, generally do not require an interview, unless requested by the U.S. embassy or consulate. Although there is a list of visa wait times for interview appointments and visa processing time for each U.S. Embassy or Consulate worldwide available, there is no guaranteed waiting time for an interview so the earlier an individual begins the application process, the better.

Information on how to schedule an appointment for an interview, pay the application processing fee, and to review specific instructions can be found at the Embassy or Consulate website of application. Note that the application process also involves an ink-free digital scan, usually taken at the interview.

Required Documentation

• Online Nonimmigrant Visa Electronic Application, Form DS-160
• A passport valid for travel to the United States with a validity date at least six months beyond the applicant's intended period of stay in the U.S. (unless country-specific agreements provide exemptions)
• One (1) 2x2 photograph
• Proof of employment
• Staff Journalist: A letter from the employed that gives the employee's name, position held within the company, and purpose and length of stay in the U.S.
• Freelance Journalist under contract to a media organization: A copy of the contract with the organization, which shows the employee's name, position held within the company; purpose and length of stay in the U.S. and duration of contract
• Media Film Crew: a letter from the employer which gives the following information: name; position held within the company; title and brief description of the program being filmed and period of time required for filming in the U.S.
• Independent Production Company under contract to media organization: a letter from the organization commissioning the work which gives the following information: name, title and brief description of the program being filmed; period of time required for filming in the U.S. and duration of contract.

For more information about coming to the U.S. as a Media Representative or some of the other nonimmigrant work visa classifications, please feel free to contact the immigration lawyers and immigration attorneys at Nachman Phulwani Zimovcak (NPZ) Law Group, P.C. They can be reached by e-mail at 201-670-0006 (x100) or you can e-mail to them at info@visaserve.com.

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GETTING THE GREEN CARD THROUGH A FAMILY MEMBER'S SPONSORSHIP: One Way To Immigrate to the U.S. NPZ LAW GROUP, P.C. Attorneys Ridgewood New Jersey

One way of permanently immigrating to the U.S. is through sponsorship from your close relatives. This falls under the category of family-based immigration; one of the ways Congress has emphasized the importance of family unification in American Immigration Law. There are certain important criteria, however, that must be met in order to successfully qualify as eligible for family-based immigration and in order to qualify as a relative's sponsor.

To act as sponsor, the petitioner must first be either a U.S. citizen or a lawful permanent resident of the United States and be able to provide documentation proving his or her status. A lawful permanent resident, also referred to as a green card holder, is defined as a foreign national who has been granted the privilege of permanently living and working in the United States. An important notion for green card holders to understand is that, under certain circumstances, the green card can be rescinded, revoked or terminated.

Second, the petitioner must have a qualifying family relationship with the beneficiary. The following are recognized qualifying relationships for a petitioner who is a U.S. citizen: Husband or wife; unmarried child under 21 years old; unmarried son or daughter over 21 years old; married son or daughter of any age; brother(s) or sister(s), if the sponsor is at least 21 years old; mother or father, if the sponsor is at least 21 years old.

If the petitioner is a lawful permanent resident, he or she can petition for he following relatives, as long as he or she can prove the following relationships: Husband or wife; unmarried child under 21 years of age; unmarried son or daughter over 21 years of age. Lawful permanent residents cannot sponsor their parents, married sons or daughters or brothers and sisters.

Once the petitioner and beneficiary meet the qualifying requirements, the petitioner must be willing to "sponsor" his or her relative for lawful permanent residency by filing the I-130, Petition for Alien Relative. In this type of a Petition, the Petitioner must present proof of legal status and proof of family relationship along with USCIS filing fees, a G-28 if the petitioner is being represented by an attorney. After completing this part of the Petition, the petitioner must then follow through with the application processing procedure. This second step is called the "Adjustment of Status" process.

As part of the Adjustment of Status process, the petitioner must be able to prove that he or she can support his or her family, relatives and all other sponsored family members at 125% above the mandated poverty line. If the petitioner cannot do that then they can seek a "joint sponsor" which is a friend or relative of the petitioner or the beneficiary. Alternatively, the support can be found in the "assets" of the sponsoring petitioner. The determination of the threshold of the ability to financially support is determined from the government's review of the Form I-864.

For more information about sponsorship for family-based immigration, please feel free to contact any of the immigration lawyers or attorneys at Nachman Phulwani Zimovcak (NPZ) Law Group, P.C. at 201-670-0006 (x100) or by e-mailing us atinfo@visaserve.com.

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PRESIDENT OBAMA'S NEXT FOUR YEARS: WHAT IS THE FUTURE OF IMMIGRATION?

President Obama's re-election last Tuesday has been partly the result of, and will play a large role in, U.S. immigration law. Immigration is arguably what defines America as a nation in many ways. American is a nation whose foundation is comprised of the work and spirit of immigrants; it has always been a refuge and a place where one can pursue their dreams in a tangible way. In many cases, it is the only country where immigrants have ever been able to call home. This holds, particularly, for those brought to the U.S. as children and for whom President Obama's Deferred Action and Childhood Arrivals (DACA) is critical. With the re-election of President Obama, there is a possibility that immigration processes can be improved and for specific programs, such as the DACA and Comprehensive Immigration Reform (CIR), to be successfully implemented.

The DREAM (Development, Relief, and Education for Minors) Act, first introduced in the Senate on August 1, 2001 sought to provide conditional permanent residency to certain undocumented residents with good moral character who graduate from U.S. high schools, arrived in the U.S. as minors, and lived in the country continuously for at least five years prior to the Bill's enactment. The DREAM Act has since been re-introduced (in March 2009) and was considered by Congress (in 2010) under a modified version and was finally passed by The House of Representatives in December of 2010 after having been introduced into the House of Representatives by President Obama and by other top Democrats. In his next term, President Obama seems to be leaning in the direction of replacing the 'Deferred Action for Childhood Arrivals' (DACA) program with a legislative or regulatory DREAM Act.

Young undocumented immigrants are one of many immigrant groups whose statuses in the U.S. will be affected by the reelection of President Barack Obama. Another prominent, and rapidly growing, immigrant population is the Latino population. This past election has proven the importance of having Latino voters on the side of a party's presidential campaign, something the Republican Party seemed to notice too late in the campaign. Shunning Comprehensive Immigration Reform and introducing 'self-deportation' policies, was clearly not an effective strategy by Governor Mitt Romney's campaign. Building a platform that is inherently anti-immigrant was not only un-American, but also detrimental if a presidential candidate is seeking the popular vote in the U.S.

Although President Obama's stance on immigration is much more appealing to the Latino community than those of his counterparts, we must look closely at his policies to get a picture of how immigration will faire in the U.S. over the next four years. President Obama has apologized for his lack of success with immigration in his first term, admitting that his priority, as he first took office, was to stop the country from going into an economic depression.

In his acceptance speech last Tuesday, President Obama promised to fix the nation's immigration system. While he did not mention any specific "plan", one thing that can be taken away from the speech is that Comprehensive Immigration Reform (CIR) now has a higher chance of receiving congressional support.

First introduced during President George W. Bush's first term, CIR is comprised of four key components: (1) Enhancing border control with the goal of stopping the flow of illegal immigrants into the country; (2) Stricter penalties for employers who hire illegal immigrants; (3) the incorporation of a more reliable system which will allow businesses to check their workers' immigration status; (4) a guest worker program and visa policy that will allow U.S. businesses to bring skilled and unskilled workers they need.

The idea of CIR contemplates a path to permanent residency and citizenship for the estimated 13 million illegal immigrants already in the country who will be required to pass background checks, learn English and pay fees and taxes.

CIR places a strong focus on assimilation rather that exclusion via a pathway to citizenship along with a concentration on removing immigrants who actually pose a potential threat to society, as opposed to those who contribute to the economy and are productive members of society. Several of the proposed "plans" for CIR come across as a promising and efficient method of fixing the nation's immigration system.

What we have learned from the recent presidential election is the importance of evolving demographics. Demographics will clearly continue to bear a strong influence on the way we think about Democracy in America. With Obama winning this year's election (by winning women voters by 11 points, 71 percent of Latino voters, 73 percent of Asian voters, 93 percent of black voters, and 60 percent of voters under 30), it is clear that winning the white vote is no longer enough. Immigration remains an inherent and valuable aspect of America as a country.

For additional information about the results of the recent election or for assistance with family or employment immigration law matters for you, your families or your friends, please feel free to contact the immigration law attorneys and lawyers at the NPZ Law Group at 201-670-0006 (x100) or by e-mail at info@visaserve.com You can also visit us on the world wide web at www.visaserve.com.

GETTING A GREEN CARD THROUGH EMPLOYMENT - THE "BLOOD AND GUTS" OF THE PERM LABOR CERTIFICATION PROCESS

While there are many ways to get the green card in the U.S., the most common one in the employment-based arena is using the PERM Labor Certification Process. A permanent labor certification issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition to the Department of Homeland Security's U.S. Citizenship and Immigration Services (USCIS), the employer must obtain a certified labor certification application from the DOL's Employment and Training Administration (ETA). The DOL must certify to the USCIS that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

To improve the operations of the permanent labor certification program (PERM), ETA published a final regulation on December 27, 2004, implementing a new, re-engineered permanent labor certification program, effective March 28, 2005. This new electronic program has improved services to our various stakeholders. As of March 28, 2005, ETA Form 750 applications were no longer accepted under the regulation in effect prior to March 28, 2005, and instead new ETA Form 9089 applications had to be filed under the new PERM regulation at the appropriate National Processing Center (NPC). Applications filed under the regulation in effect prior to March 28, 2005, continued to be processed under the rule in effect at the time of filing at an appropriate Backlog Elimination Center until such time as the backlog was eliminated. Where an employer chose to withdraw an application filed under the regulation in effect prior to March 28, 2005, and still in process, and to refile an application for the identical job opportunity under the re-file provisions of the PERM regulation, the employer was permitted to use the previously filed ETA Form 750 application filing date.

DOL processes Applications for Permanent Employment Certification, ETA Form 9089, with the exception of Schedule A and sheepherder applications filed under 20 CFR §656.16. The date the labor certification application is received by the DOL is known as the filing date and is used by USCIS and the Department of State as the priority date. After the labor certification application is certified by DOL, it should be submitted to the USCIS service center with a Form I-140, Immigrant Petition for Alien Worker. The certification has a validity period of 180-days and expires if not submitted to USCIS within this period.

The PERM process is very detail oriented and it is important to be sure that the individual that prepares the PERM application be intimately familiar with the nuances that can impact the favorable or unfavorable outcome of the case. For example, if an India Citizen has a three year degree, it is critical to explain the equivalence in detail. Also, it is very important, from the outset of the case to undertake an analysis as to whether or not the employer will have the "ability to pay" the Federally Mandated Prevailing Wage.

There are numerous steps that have to be undertaken in connection with the PERM Labor Certification Process. Those steps are as follows:

1. Application. The employer must complete an Application for Permanent Employment Certification, ETA Form 9089. A completed application will describe in detail the job duties, educational requirements, training, experience, and other special skills the employee must possess to perform the work, and outline the foreign worker's qualifications.
2. Signature requirement. Applications submitted by mail must contain the original signature of the employer, foreign worker, and preparer, if applicable, when they are received by the NPC. Applications filed electronically must, upon receipt of the labor certification issued by ETA, be signed immediately by the employer, foreign worker, and preparer, if applicable, in order to be valid.
3. Prevailing wage. Prior to filing ETA Form 9089, the employer must request and obtain a prevailing wage determination from the National Prevailing Wage Center (NPWC). The employer is required to include on the ETA Form 9089 the NPWC provided information: the prevailing wage, the prevailing wage tracking number, the SOC (O*NET /OES) code, the occupation title, the skill level, the wage source, the determination date, and the expiration date.
4. Pre-Filing Recruitment Steps. All employers filing the ETA Form 9089 (except for those applications involving Schedule A occupations and sheepherders filed under 20 CFR §656.16) must attest, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the application. When filing under 20 CFR §656.17, the employer must recruit using the standards for professional occupations set forth in 20 CFR §656.17(e)(1) if the occupation involved is on the list of occupations published in Appendix A to the preamble of the final PERM regulation. The occupations listed have been deemed to be professional occupations, as they normally require a bachelor's or higher degree. For all other occupations not normally requiring a bachelor's or higher degree, employers can simply recruit under the requirements for nonprofessional occupations at 20 CFR §656.17(e)(2). Employers are not prohibited from conducting more recruitment than is required by the regulations. The employer must prepare a recruitment report in which it categorizes the lawful job-related reasons for rejection of U.S. applicants and provides the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity, however, if requested by the Certifying Officer, the employer must submit the resumes.

1. Audits/requests for information. Supporting documentation may not be filed with the ETA Form 9089, but the employer must provide the required supporting documentation if the employer's application is selected for audit or if the Certifying Officer otherwise requests it.
2. Retention of records. The employer is required to retain copies of applications for permanent employment certification and all supporting documentation for five years from the date of filing the ETA Form 9089. For example, the NPWC prevailing wage determination documentation is not submitted with the application, but it must be retained for a period of five years from the date of filing the application by the employer.
3. Online filing. The employer has the option of filing an application electronically (using web-based forms and instructions) or by mail. However, DOL strongly recommends that employers file electronically. Not only is electronic filing, by its nature, faster, but it will also ensure the employer has provided all required information, as an electronic application can not be submitted if the required fields are not completed. Additionally, when completing the ETA Form 9089 online, the preparer is provided prompts to assist in ensuring accurate data entry.

The employer can access a customer-friendly Web site (http://www.plc.doleta.gov/) and, after registering and establishing an account, electronically fill out and submit an Application for Permanent Employment Certification, ETA Form 9089.

Registration. To better assist employers with processing the Application for Permanent Employment Certification, the electronic Online Permanent System requires employers to set up individual accounts. An employer must set up a profile by selecting the appropriate profile option in the Online System. By completing an Employer Profile, the employer is able to:

1. 
   
   • Save time by pre-populating its general information.
   • View the status of its labor certification applications online.
   • Update its profile information online.
   • Track newly submitted labor certification applications.
   • E-mail saved labor certification applications to others within the company.
   • Add new users to its account.
   • Withdraw labor certification applications no longer needed.
2. Filing by mail. Employers can submit paper applications to the Atlanta NPC. The address and contact information are provided on our Contact Information page.
3. Approvals. If the Atlanta NPC approves the application, the ETA Form 9089 is signed by the Certifying Officer and returned to the employer/employer representative who submitted the application.

If you and/or your employer is interested in filing a PERM Labor Certification, please feel free to contact the U.S. Immigration and nationality Lawyers at Nachman Phulwani Zimovcak (NPZ) Law Group at info@visaserve.com or by telephone at 201-670-0006 (x100).

IF I GET THE GREEN CARD, CAN I LOSE A GREEN CARD: International Travel as a Permanent Resident.

Once an individual obtains their lawful permanent residence status in the U.S. the immigration lawyers and attorneys in our office have to explain that the green card CAN be taken away by the U.S. government. A n individual's lawful permanent residence can be revoked, rescinded, abandoned or terminated by the U.S. government for a variety of reasons. One of the most frequent reasons to lose lawful permanent residence is the failure by a green card holder to maintain their lawful permanent residence in the U.S.

 To this end, we share the following Frequently Asked Questions (FAQs) to assist you and your friends and your family members so that you can avoid potential allegations by the U.S. government that you have failed to maintain lawful permanent residence (the green card) in the U.S.

What documents do I need to travel outside the United States?

In general, you will need to present a passport from your country of citizenship or your refugee travel document to travel to a foreign country. In addition, the foreign country may have additional entry/exit requirements (such as a visa). For information on foreign entry and exit requirements, see the Department of State's webpage at www.travel.state.gov.

What documents do I need to present to reenter the United States?

If seeking to enter the United States after temporary travel abroad, you will need to present a valid, unexpired "green card" (Form I-551, Permanent Resident Card). When arriving at a port of entry, a U.S. Customs and Border Protection Officer will review your permanent resident card and any other identity documents you present, such as a passport, foreign national I.D. card or U.S. Driver's License, and determine if you can enter the United States. For information pertaining to entry into the United States, see U.S. Customs and Border Protection's webpage at www.cbp.gov.

Does travel outside the United States affect my permanent resident status?

Permanent residents are free to travel outside the United States, and temporary or brief travel usually does not affect your permanent resident status. If it is determined, however, that you did not intend to make the United States your permanent home, you will be found to have abandoned your permanent resident status. A general guide used is whether you have been absent from the United States for more than a year. Abandonment may be found to occur in trips of less than a year where it is believed you did not intend to make the United States your permanent residence. While brief trips abroad generally are not problematic, the officer may consider criteria such as whether your intention was to visit abroad only temporarily, whether you maintained U.S. family and community ties, maintained U.S employment, filed U.S. income taxes as a resident, or otherwise established your intention to return to the United States as your permanent home. Other factors that may be considered include whether you maintained a U.S. mailing address, kept U.S. bank accounts and a valid U.S. driver's license, own property or run a business in the United States, or any other evidence that supports the temporary nature of your absence.

What if my trip abroad will last longer than 1 year?

If you plan on being absent from the United States for longer than a year, it is advisable to first apply for a reentry permit on Form I-131. Obtaining a reentry permit prior to leaving the United States allows a permanent or conditional permanent resident to apply for admission into the United States during the permit's validity without the need to obtain a returning resident visa from a U.S. Embassy or Consulate abroad. Please note that it does not guarantee entry into the United States upon your return as you must first be determined to be admissible; however, it will assist you in establishing your intention to permanently reside in the United States. If you remain outside of the United States for more than 2 years, any reentry permit granted before your departure from the United States will have expired. In this case, it is advisable to consider applying for a returning resident visa (SB-1) at the nearest U.S. Embassy or Consulate. An SB-1 applicant will be required to establish eligibility for an immigrant visa and will need a medical exam. There is an exception to this process for the spouse or child of either a member of the U.S. Armed Forces or civilian employee of the U.S. Government stationed abroad on official orders. For more information on obtaining a returning resident visa, see the Department of State's webpage on returning resident visas at www.travel.state.gov.

Additionally, absences from the United States of six months or more may disrupt the continuous residency required for naturalization. If your absence is one year or longer and you wish to preserve your continuous residency in the United States for naturalization purposes, you may file an Application to Preserve Residence for Naturalization Purposes on Form N-470.

Please note that everyone's circumstances are different. If you would like specific legal advice with regard to our potential travel outside the U.S., please feel free to visit our website at www.visaserve.com or to e-mail to us at info@visaserve.com.

Child Status Protection Act (CSPA) - Part III - by: Michael Phulwani, Esq. and David H. Nachman, Esq.

This is the third and concluding part of the series of articles with regard to the applicability of the Child Status Protection Act (CSPA) and the formula, based upon which the child who aged out may qualify to obtain immigrant visa, and other relevant information.

We now discuss how and in what type of cases, the priority date can be retained and various decisions rendered by the Board of Immigration Appeals (BIA) and Circuit Courts in certain parts of the country on this issue.

Retention of Priority Date:

A petition filed on behalf of a child of a green card holder under F2A preference category is automatically converted to F2B preference category if the child ages out and does not qualify under CSPA. When a derivative child of an F2A petition ages out, and is not eligible under CSPA, the green card holder parent has to file a new separate I-130 petition under F2B category on behalf of the aged-out child. The child is able to retain the original priority date of the first petition for the new petition under F2B category.

However, derivative children who age out under F1, F3, & F4 preference categories and who are also not eligible for CSPA, will have to wait until their parent becomes a green card holder and that parent files a new I-130 petition on their behalf under F2B preference category, and is accorded a new priority date, for which the current waiting period is over 9 years. Recently, there have been some court decisions wherein the courts have held that, in such cases, children should be accorded the same priority date as of the petition filed on behalf of the parent. Detailed information with regard to the decisions of the Board of Immigration Appeals (BIA) and courts is provided in this concluding part of the article.

The Immigration & Nationality Act (INA) as amended by the CSPA provisions provides:Retention of Priority Date - If the age of an alien is determined... to be 21 years of age or older..., the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.

It was not clear to the U.S. Citizenship & Immigration Services (USCIS) as to whether the new petition can be assigned the priority date of the original petition that was filed on behalf of the child's parent. USCIS has interpreted the CSPA provisions narrowly. USCIS has taken the position that these aged-out children may not retain the original priority date.

In the matter of Garcia, BIA held on June 16, 2006 that CSPA allows for priority date retention when the green card holder parent files a new I-130 petition for the aged-out child. In this case, the alien Maria was the derivative beneficiary of an I-130 petition filed on behalf of her mother by her aunt in 1983. When the visa numbers became current in June 1996, Maria had aged out and was unable to obtain a green card. Her mother, upon becoming a green card holder, filed a new I-130 petition on behalf of Maria under F2B category. In this case, the BIA determined that as per the CSPA provision stated above, Maria automatically converted to the F2B preference category as she was still the unmarried daughter of a green card holder. Further, it also held that Maria was eligible to retain the 1983 priority date of the petition filed by her aunt on behalf of her mother, thus making her current in the F2B category. Unfortunately, the USCIS decided not to follow the Garcia decision and continued to give new priority date for the petitions filed by green card holder parents for the children left behind.

Subsequent to the Garcia decision, BIA rendered another decision in the Matter of Wang in 2009, stating that CSPA does not apply to a now adult noncitizen (meaning that foreign national child who aged out) who was previously listed as a derivative on a visa petition filed on behalf of the child's parent. In other words, Wang decision reversed the Garcia decision mentioned above and held that the child cannot be granted the old priority date.

This matter was again brought up in the matter of Mohammad Abubakar Khalid v. U.S. Attorney General before the U.S. Court of Appeals which rendered the decision, holding that the plain language of the CSPA was unambiguous and that the interpretation of the matter of Wang, contravenes the plain language of the CSPA, and the Court declined to follow the Matter of Wang. In its 19-page decision rendered on September 8, 2011, the U.S. District Court of Appeals for the Fifth Circuit stated that the Congress plainly made automatic conversion and priority date retention available to all the petitions for derivative beneficiaries of all the family-based petitions, including the 4^th preference petitions.

Recently, the Ninth Circuit Court of Appeals, held in the Matter of De Osorio, stating that children who are under the age of 21, when they are listed as "derivative" on a permanent residence application, should be able to retain their space in line, even if they turn 21 before the immigrant visa is issued. Once again, the Circuit Court of Appeals stated that in the Matter of Wang, parents were forced to leave their children behind or to live with vulnerability because of the quota or processing delays.

There have been some other court decisions rendered similar to the abovementioned decisions. However, as of today, USCIS has made no decision to follow the court decisions. We hope that this matter can be resolved soon by USCIS, changing its policy as per the court decisions or compelling USCIS by taking individual cases or by class action to the court. It is also possible that ultimately, the matter is taken by the U.S. Supreme Court, which may render a decision in favor of retention of old priority date. We need to wait and watch. In the meantime, it is a good idea that when the principal applicant files the I-130 petition for the child left behind, he/she should submit the request with a legal brief to the USCIS to accord the old priority date based upon various court decisions.

Child Status Protection Act – Part II

President Bush signed into law the Child Status Protection Act (CSPA) on August 6, 2002 which permits certain aliens to retain classification as a “child”, even if the child has reached the age of 21.

In part I of the article, we discussed about various steps in making determinations as to whether CSPA applies to the child, (1) when the child’s age is frozen under CSPA, (2) age of child when the priority date becomes available minus the period of times taken by the U.S. Citizenship & Immigration Services (USCIS) in approving the petition, (3) whether the application for the immigrant visa, Form DS-230, was filed or the fee was paid for the child within one year, from the date when the visa became available. In cases where the principal applicant (parent) adjusted status as a permanent resident, the parent should have filed Form I-824 within one year from the date the visa became available.

We now continue to discuss about CSPA applicability for Asylee/Refugee applicants and detailed information about calculating CSPA applicability and eligibility under Family and Employment preference categories.

Asylum/Refugee Applicants

Asylum / Refugee applications pending on or after August 6, 2002 will benefit from CSPA. USCIS memorandum of August 17, 2004 provides further guidance concerning the effect of CSPA on petitions for children following to join an asylee or refugee and for purposes of adjustment of status.

For asylees, an unmarried alien who seeks to accompany, or follow to join, a parent granted asylum, and who was under 21 years of age on the date on which such parent applied for asylum, will continue to be classified as “a child” even after he or she attained 21 years of age after such application was filed but while it was pending. The child must be under the age of 21 years on the date that his or her parent applied for political asylum. There is no requirement that the child should have been included as a dependent on a Political Asylum application at the time of filing, only that the child be included prior to the adjudication.

For refugees, a child who is under 32 on the date the parent files the Form I-590, is first interviewed by USCIS, will continue to be classified as a “child” even after he or she attained 21 years of age after such application was filed. In order to be eligible for continued classification as a child, the parent must have listed the child on the Form I-590 prior to adjudication of the application.

Benefits under Patriot Act

An alien who is the beneficiary of a visa petition or application filed on or before September 11, 2001, can deduct an additional 45 days under step two above, to determine his/her age for the purposes of CSPA. The Patriot Act grants such aliens 45 days extra in addition to the number of days that the petition was pending, and allows them to deduct this number from the age of the child for the purposes of CSPA.

Other Important Considerations

Assuming CSPA applies, based upon the above mentioned explanation, the determination of age of the child is made under various family- and employment-based categories as follows:

Family Preferences

Immediate Relatives (Children of U.S. citizens):

·     The age of the child will freeze on the date of filing of Form I-130 and the child will permanently qualify as a child under Immediate Relative (IR) category as long as he/she does not marry.

·      Naturalization of a parent who filed a family-sponsored second immigrant visa petition (as a lawful permanent resident alien) for an unmarried child under the age of 21 would result in the child’s classification as an Immediate Relative even if he/she thereafter crosses the age of 21 years, provided the parent’s naturalization occurred while the age was below 21 years of age. As indicated above, CSPA provides for the automatic transfer of preference categories when the parent of an unmarried son or daughter naturalizes, but also provides the unmarried son or daughter the ability to request that such transfer not occur. If an unmarried son or daughter does not want such automatic transfer of preference categories to occur upon his or her parent’s naturalization, the Immigration Service (USCIS) shall accept such request in the form of a letter signed by the beneficiary. If the beneficiary does make this written request to the Immigration Service (USCIS), then the beneficiary’s eligibility for family-based immigration will be determined as if his or her parent had never naturalized.

Preference Categories

F2A category – Unmarried Sons & Daughters under the age of 21 of permanent residents:

If CSPA applies, the age of the child should be calculated by taking the age of the child on the date that a visa first became available and subtract the time taken by USCIS to adjudicate the petition. This has been discussed at length in the opening paragraphs above.

Derivatives in Other Family & Employment Preference Categories, DV and Asylee cases:

 If CSPA applies then the age of the derivative child should be determined on the basis of guidelines provided above.

To Be Continued…

Child Status Protection Act – Part I : by Michael Phulwani, Esq. and David H. Nachman, Esq.

When President Bush signed into law The Child Status Protection Act (CSPA) on August 6, 2002, it was evident that the Act sought to avoid penalizing children for U.S. Citizenship & Immigration Services (USCIS) [formerly known as INS] delays.  The CSPA amends the Immigration & Nationality Act (INA) by permitting certain aliens to retain classification as a “child” under the Act, even if he or she has reached the age of 21. However, the CSPA provisions were so ambiguous that USCIS officials and American consular officers had difficulties in interpreting its language and sense. The Department of State (DOS), which interprets matter of law for American consular officers, then provided guidelines and clarifications though several cables to consular officers to enable the proper applicability of CSPA.  USCIS also issued instructions to its field officers through several memorandums clarifying the applicability and implementation of CSPA.

From the time CSPA was enacted until today, we have been continuously researching and reviewing the extent and nature of the implications, taking into account the DOS and USCIS cables and memorandums as well as the decisions of the Board of Immigration Appeals (BIA) and decisions rendered by the courts. We are now happy to provide our following analysis.

Does CSPA apply?

Step One

The first step is to make the determination as to whether CSPA applies as stated above.

The initial interpretation and memorandums with regard to the applications of CSPA, provided that CSPA applies only to the petitions approved before August 6, 2002 and in limited number of cases to the petitions approved between August 6, 2001 and August 5, 2002. Later, this rule was changed and presently, CSPA applies to the petitions approved any time before or after August 6, 2002.

Step Two

If CSPA applies under the abovementioned guidelines, the next step would determine whether a child, who would have previously lost benefits due to aging-out, is able to receive benefits. The first part of the analysis is determining the date on which the child’s age is “frozen.”

Firstly, ascertain when immigrant visa numbers became available. The date that a visa number becomes available is the first day of the month that the Department of State (DOS) Visa Bulletin says that the priority date has been reached.  If upon approval of the Form I-130 petition, a visa number is already available according to the DOS Visa Bulletin, the date that a visa number becomes available is the approval date of the Form I-130.

When the visa number becomes available, we can commence the exercise to freeze the child’s age by deducting the time taken by USCIS for approval of the visa petition from the age of the child. The time deducted from the age of the child is the difference between the priority date and the date on which petition was approved. If under this formula, the child’s age is under 21, it will be frozen at that point. The child’s aging out after that “frozen” date will not affect eligibility to obtain immigration benefits.

With regard to the children under the preference categories, their age for CSPA purpose is calculated by taking the age of the child on the date the visa became available and subtracting the time taken by the USCIS to adjudicate the petition.

Step Three

The child’s age – determined by the first two steps described above – will remain frozen only if the beneficiary has sought to acquire the status of an alien admitted for permanent residence within one year of the visa availability. For a child beneficiary who is obtaining his visa at a U.S. Consulate abroad, this requirement will be satisfied by the submission of a completed Form DS-230 Part I to the consular office where the visa application would be processed or the National Visa Center (NVC). In the cases in which the principal adjusted status in the U.S. and the derivative is applying for a visa abroad, the third step is satisfied by the filing of Form I-824 by the principal applicant. For a child beneficiary who is adjusting his/her status in the U.S., the filing of Form I-485 satisfies the third step. However, it is important that the third step has to be completed within one year of the visa availability.

The BIA decision in December 2004, has provided a broader interpretation of the phrase “sought to acquire” Lawful Permanent Resident (LPR) status to include actions other than simply filing Forms DS-230 Part I, I-824 or I-485. The BIA found that seeking the assistance of an attorney within the one-year window to prepare the application for adjustment of status satisfied the requirement. The BIA found that the statutory language “sought to acquire” is broader than “filed” and includes acts that “try to acquire or gain” or “make an attempt to get or obtain.” However, this decision was not implemented by the concerned authorities and CSPA requests were denied in most of the cases for noncompliance of the one-year rule. The good news is that based upon representations made to the DOS, DOS has rendered Advisory opinions in certain cases where the visa fee for the child, was paid to the NVC within one year from the date when the visa number became available for the first time and, in some other situations, for reasons warranting such decision. It should be noted that the DOS has not rendered any memorandum or policy decision on this subject to the consular officers. Therefore, in such cases, we have to approach the DOS for an Advisory opinion.

Child of Adjustee in the United States

The alien child applying for his/her visa abroad as a derivative on the basis of the parent’s adjustment of status is also required to show that he/she sought to acquire permanent resident status within one year of visa availability. Filing of Form I-824 by the parent within one year of visa availability would suffice for the purpose of satisfying this requirement.

In Part II of this article, we will discuss about seeking the old priority date (of the parent’s petition) for the children who aged out and did not qualify under CSPA. In recent court decisions, it has been held that when the green card holder parent files the Form I-130 petition on behalf of such child, he or she should be given the old priority date of the petition under which the parent was granted immigrant visa.

…to be continued