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IMMIGRATION DECEMBER 31, 2021 | The Indian Eye 48
The Denial of Adjustment of Status Applications of Derivative Children Who Turn 21
Before the Final Action Date in the Visa Bulletin Became Current is Inconsistent with
the Child Status Protection Act:
CAN MORe LAWSuITS ReVeRSe eRRONeOuS uSCIS AND DOS POLICy?
CYRUS D. MEHTA to claim the protection of the suant to a DFF and the child ted for permanent residen- the age! This reasoning is in-
Child Status Protection Act ages out before the FAD cy within one year of such consistent. If an applicant is
everal children who filed through the Dates for Filing becomes available, the child availability.” If the child’s allowed to meet the sought
I-485 applications as de- exacerbates the problem for will no longer be protected age is over 21 years, it can be to acquire requirement from
Srivatives of their Indian these beneficiaries. despite being permitted to subtracted by the amount of the DFF, the age should also
born parents under the Oc- The USCIS Policy Man- file an I-485 application. The time the applicable petition similarly freeze on the DFF
tober 2020 Visa Bulletin are ual, https://www.uscis.gov/ I-485 application will get de- was pending. See INA 203(h) and not the FAD. Based on
being denied because they policy-manual/volume-7- nied, and if the child no lon- (1)(B). USCIS’s inconsistent logic,
turned 21 years before the part-a-chapter-7, states that ger has an underlying nonim- the I-485s of many children
Final Action Dates became only the Final Action Dates migrant status, can be put in will get denied if they aged
current. The backlogs for In- (FAD) protects the age of the great jeopardy through the under ina 245(a)(3), out before the FAD becomes
dia in the employment-based child under the Child Status commencement of remov- an i-485 application available.
second and third preferences Protection Act (CSPA). The al proceedings, and even can only be filed when Neither the USCIS nor
have already caused untold State Department too has if removal proceedings are the DOS have considered
suffering to beneficiaries the same policy of using the not commenced, can start an “immigrant visa is reversing this policy by al-
of approved I-140 petitions FAD for purposes of freezing accruing unlawful presence, immediately available.” lowing CSPA protection
who have to wait for over a the age of the child at 9 FAM which can trigger the 3 and based on the DFF. Brent
decade in the never ending 502.1-1(D)(4) . 10 year bars to reentry. If the Renison challenged this pol-
backlogs. When the Dates Using the Dates for Fil- child filed the I-485 as a de- Therefore, there is no icy in Nakka v. USCIS, de-
for Filing in the India EB-3 ing (DFF) to protect the age rivative with the parent, the meaningful difference in the tails of which can be found
overtook the India EB-2 un- of the child who is nearing parent can get approved for verbiage relating to visas on his blog at http://www.
der the October 2020 Visa the age of 21 is clearly more permanent residence when availability – “immigrant visa entrylaw.com/backlogcspal-
Bulletin thousands of appli- advantageous – the date be- the FAD becomes available becomes available” and “im- awsuit. The plaintiffs in this
cants filed I-485 applications comes available sooner than while the child’s application migrant visa is immediately case not only challenged the
for themselves, spouses and the FAD – but USCIS policy gets denied. available” under INA 203(h) CSPA policy but also argued
minor children. Hence, the erroneously maintains that I had first advocated in (1)(A) and INA 245(a)(3) that they were denied equal
denial of the I-485 applica- only the FAD can protect the my blog of September 22, respectively. If an adjust- protection under the Fifth
tions of their children who age of the child. Thus, if an 2018 entitled Recipe for ment application can be filed Amendment on the ground
turn 21 and are not allowed I-485 application is filed pur- Confusion: USCIS Says Only based on a Filing Date pur- that children of parents who
the Final Action Date suant to 245(a)(3), then the were born in countries such
Protects a Child’s Age interpretation regarding visa as India and China that have
under the Child Status availability under 203(h)(1) been impacted by the per
Protection Act that the (A) should be consistent, and country limits have a worse
DOF should protect the so the Filing Date ought to outcome than children of
age of the child under freeze the age of the child, parents born in countries that
the CSPA rather than and the child may seek to have not been impacted by
the FAD. acquire permanent residency the per country limits. Mag-
There is a clear le- within 1 year of visa availabil- istrate Judge Youlee Yim
gal basis to use the fil- ity, which can be either the You found on November 30,
ing date to protect the Filing Date or the Final Ac- 2021 that plaintiffs’ claims
age of a child under the tion Date. that the USCIS Policy Man-
CSPA: Unfortunately, USCIS ual and Foreign Affairs Man-
INA 245(a)(3) only disagrees. It justifies its po- ual dictating the use of the
allows for the filing of an sition through the following FAD to calculate the CSPA
I-485 adjustment of sta- convoluted explanation in age instead of DOF was not
tus application when “an the policy manual that makes “final agency action” and
immigrant visa is imme- no sense: “If an applicant thus could not be reviewed
diately available.” Yet, files based on the Dates for under the Administrative
I-485 applications can Filing chart prior to the date Procedure Act. Magistrate
be filed under the DFF of visa availability according Judge You also found that
rather than the FAD. As to the Final Action Dates plaintiffs could not claim a
explained, the term “im- chart, the applicant still will violation of equal protection
migrant visa is immedi- meet the sought to acquire under the U.S. constitution
ately available” has been requirement. However, the for unequal treatment. The
applicant’s CSPA age calcu-
m of interpreted more broad- lation is dependent on visa Magistrate Judge’s decision
is only a recommendation
ly to encompass dates
CYRUS D. MEHTA & PARTNERS PLLC ahead of when a green availability according to the to the district court judge
Final Action Dates chart.
card becomes available. presiding over the case, who
Under INA 203(h)(1) Applicants who file based is Judge Simon. The Magis-
(A), which codified Sec- on the Dates for Filing chart trate Judge’s recommenda-
tion 3 of the CSPA, the may not ultimately be eligible tion also does not pass any
for CSPA if their calculated
age of the child under 21 CSPA age based on the Final judgment on the policy itself
is locked on the “date and whether it is appropriate
on which an immigrant Action Dates chart is 21 or to rely on the FAD rather
visa number becomes older.” The USCIS recogniz- than the DOF. It should also
available…but only if es that the sought to acquire be noted that a Magistrate
requirement is met when an
the [child] has sought Judge is not an Article III
2 6th Floor to acquire the status of I-485 is filed under the DFF, judge and her findings and
but only the FAD can freeze
an alien lawfully admit- recommendations will not be
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