CSPA Family Petitions Impacted by Supreme Court Decision

The U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum on June 25, 2015, rescinding a 2013 hold on cases that were dependent upon the outcome of a U.S. Supreme Court case related to the Child Status Protection Act (CSPA). The June 2014 Supreme Court decision on the case, Scialabba v. Cuellar de Osorio, did not result in the hoped-for favorable interpretation on a complex issue of priority date retention. The memo instructs USCIS officers to resume adjudication of the relevant cases. Given that the Supreme Court sanctioned an extremely narrow interpretation of the CSPA, this means that, by-and-large, the cases that were put on hold will not receive any special priority date benefits.

Background: Scialabba v. Cuellar de Osorio

The issue in the Scialabba case involved priority date retention and the CSPA. The basic legal controversy is set out in the MurthyDotCom NewsBrief, Supreme Court Narrowly Interprets CSPA (06.26.2014). In short, the arguments surrounded a provision that provides for automatic conversion of a petition if a foreign national “ages out” (i.e. reaches the age of 21 years). The provision also allows for priority date retention in certain situations. However, the limits of these benefits under the CSPA were not entirely clear. The USCIS took the position that the CSPA should be interpreted narrowly. Over the period of a number of years, though, many cases were filed in the hope of ultimately having the CSPA interpreted more broadly, and such cases were put on hold by the USCIS, pending the outcome of Scialabba.

USCIS Instructions to Adjudicators

The June 25th policy memorandum directs the USCIS to immediately return to adjudicating the cases that were placed on hold pending the Scialabba decision. Per the memo, the USCIS will deny any application for adjustment of status (I-485 form) for CSPA applicants, if the case is based on a petition requesting priority date retention that has since been denied, and visa number availability would require retention of the older date.

There are some situations in which priority dates can be retained in family-based petitions. But the holding in Scialabba and this corresponding memo make it clear for individuals who sought benefits that would have required a more liberal interpretation of the CSPA, that the USCIS is moving forward and denying these cases.

Conclusion

Given that the USCIS argument won in court, this move was expected. Individuals with cases that were awaiting the Supreme Court decision need to review their available options, if they have not already done so. Those who are within the U.S. need to consider the impact of this restrictive interpretation on their current status and future plans. The Murthy Law Firm attorneys are available for consultations on these issues.

Copyright © 2015, MURTHY LAW FIRM. All Rights Reserved