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[Previous entry: "Summary of new Student Rules"] [Main Index] [Next entry: "Department of State says that it doesn't share visa data with local law enforcement"] 04/05/2003 Entry: "Department of State Provides more guidence on Child Status Protection Act" The following is the the Department of State's answers to AILA questions during an AILA-STATE DEPARTMENT VISA OFFICE Liasion metting of 3/27/03.
CHILD STATUS PROTECTION ACT a. The cable indicates that a beneficiary of a petition approved before the CSPA enactment date is covered if he aged out on or after that date (or if he was refused under 221(g)). Limiting eligibility to beneficiaries who aged out after enactment ignores the plain language section 8 of the CSPA. That “Effective Date” section does not base CSPA’s applicability on whether the age-out occurred before or after enactment. Instead, it ties applicability to where the application or petition stood in the process. Indeed, subsection (1) applies the Act to the beneficiaries of petitions filed before enactment “if a final determination has not been made on the beneficiary’s application for an immigrant visa or adjustment of status to lawful permanent residence pursuant to such approved petition.” In other words, persons who aged out before 8/6/02 ARE covered, as long as their immigrant visa (or adjustment of status) had not been decided. Congress here was clearly trying to provide relief to individuals who could have obtained permanent residence but for the fact that processing delays caused them to age out, but Congress chose not to ask the agencies to revisit cases that had already reached final determination. We ask that this section of the cable be revisited in view of the statutory language. b. The cable also seems to say that, if the petition was approved before 8/6/02, and the beneficiary aged out before that date and failed to apply for a visa, the CSPA would not apply. There is nothing in the language of the statute that indicates this. Section 8 indicates that, as long as there has not been a final determination on an immigrant visa application or adjustment of status, CSPA applies. Again, Congress chose not to ask agencies to reopen cases already decided, but clearly provided benefits to those whose cases remained unresolved. This would include people who did not apply for a visa (most often, the reason for not applying was that they knew they could not complete the process before age-out). c. The cable also indicates that age for section 3 purposes is determined “on the date that a visa first became available (i.e., the date on which the priority date became current and the petition was approved, whichever came later).” We believe that this reading is not quite accurate. Section 3 of the CSPA indicates that the first part of the age formula is fixed by “the age of the alien on the date on which an immigrant visa number becomes available…” (emphasis added) The cable’s interpretation reads out the key word “number”. The visa number becomes available when the priority date becomes current, even if the visa itself is not yet available. Thus, a family-based petition may still be pending when the visa number becomes available, but the child’s age should be frozen at that point, not at the point at which the petition is approved (which is when the visa would be available). Currently, there are no backlogs in the priority dates for employment-based petitions. Thus, the visa number becomes available at the time the petition is filed, and the age should be frozen at that point. We ask DOS to reconsider this aspect of the cable. A. We appreciate AILA’s thoughts on this issue. The guidance in the January 17 cable (CSPA Aldac No. 2) was arrived at after lengthy and careful intra- and inter-agency deliberation, in close consultation with INS/BCIS, with the statutory language, as always, the driving force behind our joint interpretation. Unfortunately, the statutory language is not as precisely or clearly drafted as it might have been and is arguably subject to differing interpretations. With respect to the issues in subparagraph “a” and “b” above, we note that aging out can be considered a “final determination” and that CSPA Section 8’s reference to the “beneficiary’s application” can be interpreted as requiring that the beneficiary actually have made an application. We also note that the interpretation of Section 8 reflected in the January 17 ALDAC is actually broader than some other defensible interpretations that were considered. While the interpretation suggested by AILA would be even broader still, it would appear to allow application of CSPA to all cases, no matter how old, as long as the alien was not denied on 212(a) grounds prior to the effective date of CSPA. This interpretation, which would result in resurrecting cases where the alien aged out years ago and failed to apply because of that, would present very serious problems of administration and would not appear to effectuate Congress’s intent to place a meaningful limit on the law’s retroactivity. We note that VO and BCIS are currently considering CSPA Section 8 and the retroactivity issue again, in the context of implementing Section 6 of the CSPA (relating to beneficiaries of F2B petitions who wish to opt out of converting to F1 upon naturalization of the petitioner). At this point, we do not envision any significant modification of our interpretation of Section 8 as a result of this exercise, but if there are any changes, they will be publicly announced. With respect to subparagraph “c” of AILA’s question, CSPA Section 3 states that a preference alien’s CSPA age is “(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d), the date on which an immigrant visa number became available for the alien’s parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability, reduced by (B) the number of days in the period during which the applicable petition described in paragraph (2) was pending.” As is clear from this language, we must measure whether a visa number is available to the particular applicant (or derivative applicant’s parent), not whether visa numbers are available to a class of cases in the particular category with a priority date before the cut-off date. An alien cannot be allocated a visa number before the alien’s petition has been approved, and therefore, as to a particular alien, visa (number) availability cannot predate petition approval. Perhaps more importantly, if we were to define visa number availability as AILA proposes, it would effectively deny many applicants eligibility for CSPA benefits due to delays in petition processing, which would defeat the intent behind the bill. This is because, to benefit from the CSPA, the alien must seek LPR status within one year of visa (number) availability. Therefore, while an early date for visa availability has the effect of reducing the CSPA age calculation, it also has the countervailing effect of making it more difficult for the alien to satisfy the requirement that he/she seek LPR status within one year of that date. Consequently, if we were to define visa (number) availability to mean simply the date on which the priority date is current -- even if the petition has not been approved yet -- then aliens in categories that are not oversubscribed, such as employment-based categories, would be required to submit the DS-230 Part I within one year of petition filing, even if/though the petition had not been approved yet. However, an alien cannot submit the DS-230 Part I until the petition has been approved. Therefore, in cases involving a category which is current and in which the INS (or BCIS) took a year or more to adjudicate the petition (a common occurrence), the alien could be precluded from benefiting from CSPA under AILA’s proposed interpretation. (And even if INS/BCIS took less than a year to adjudicate the petition, the alien could find it difficult (if not impossible) to submit the DS-230 Part I in the brief window between petition approval and the one year anniversary of petition filing.) This result is neither fair nor consistent with congressional intent. It is important to keep in mind that all cases must necessarily fall into one of two categories – those where the priority date became current on or after the date the petition was approved (which will be the case with most family-based and all DV cases), and those cases where the priority date became current before the petition was approved (which will be the case for most employment-based cases). In the former cases, under VO and BCIS’s joint interpretation, the visa (number) availability date will be the date that the priority date became current, which produces the same result as AILA’s proposal. In the latter cases, under the VO-INS interpretation, the visa (number) availability date will be the date that the petition was approved, which will ensure that the alien will have a full one year period from petition approval within which to seek LPR status. In addition, it should be noted that the alien’s CSPA age in Section 3 (preference/DV) cases is not the alien’s age on the date of visa availability but rather that age, reduced by the time the petition was pending. In cases where the priority date was current when the petition was filed, one must take the alien’s age when the petition was approved and subtract the time the petition was pending, which necessarily will always lead to a CSPA age that is equal to the alien’s age on the date the petition was filed. So, the interpretation reflected in CSPA Aldac #2 actually leads to the same result that AILA appears to be aiming at with its proposal, even for cases where the priority date is current at time of petition filing. If we were to accept AILA’s proposal, however, the alien’s CSPA age would not be frozen on the date that the priority date became current, as AILA’s question suggests. Rather, in cases involving categories that are not oversubscribed, the alien’s age would start out at the age on the date of petition filing but, under AILA’s proposal, would then continually decrease as long as the petition continued to be pending. This would lead to anomalous results such as aliens with negative ages, and cases where the alien was already over 21 at time of petition filing but who magically became younger over time, thereby granting child status to an alien who was not even a child on the date the petition was filed. This would lead to the further anomaly of putting preference cases under CSPA Section 3 in an even better position than IR cases under Section 2, at least for age calculation purposes. And as noted above, the practical effect would actually be to prejudice these aliens by making it much harder, and in many cases impossible, for these aliens to satisfy the separate requirement that they seek LPR status within one year of visa (number) availability. We do not believe this is consistent with either the statutory language or congressional intent. Posted on AILA InfoNet at Doc. No. 03040340 (Apr. 3, 2003)
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