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USCIS and Department of State Adopt New Position on CSPA Opt-Out Provisions as a Result of Litigation by Immigrants

I reported to you in March of this year that I had filed cases with USCIS and the DEPARTMENT of STATE contesting refusals by both services to allow immigrants from the Philippines to "opt-out" of first preference (F-1) status once their parents naturalized.

The issue focused on one important detail whether the child who was the beneficiary of his Legal Permanent Resident parent's petition was under 21 (making him or her F-1a) or over age 21 (making them F-2b) . USCIS and the Department of State tried to argue that children whose petitions were originally filed in F2a status could not opt out of a change in status to F-1 once their parents naturalized. As a result they were subject to several years of waiting in an inferior visa classification.

We argued and the Federal District Court agreed that the CSPA statute and intent of Congress did not support this position and the Court denied the government's motion to dismiss my case. USCIS and Department of State then processed the immigrant visa cases in return for dismissal of the law-suit.

As a result of these litigation efforts which brought a backroom policy of unjustified denials into the open, USCIS and the Department of State were forced to take a legal position that made sense and would withstand judicial scrutiny. On June 14, 2006 USCIS issued the "Aytes Memo" which can be found at the USCIS website.

In this memo Associate Director Michael Aytes, explicitly reverses a prior policy memo dated March 23, 2004 to adopt a reading of section six of CSPA suggested in my complaints and correspondence with the Service. Namely that USCIS would no longer seek to exclude I-130 applications filed by LPR parents for children who were under 21 or in F-2a status from the ability to opt out of F-1 status when the parent naturalized. USCIS had sought to use certain language which described applicants who's petition was "initially filed" in F2b status. We argued successfully that since this provision applies to application of the conversion to F-1, our clients would change to F-2b status upon turning 21 and remain in that category. And if F-1 conversion occurred, the "initially filed" language does not constrain their request to opt-out and return to second preference.

Michael Aytes agreed stating that a reading of CSPA statute allowing both F2A and F2B petitions to opt out of F-1 conversions was "more compelling, and as a result, and is amending its policy".

It is extremely important that unfair regulations, policy memos and practices be challenged by immigration attorneys for the benefit of their clients. That is why I will continue to represent clients on cases where other attorneys have said no, because sometimes the Immigration Service does not get it right until immigrants demand regulations and policies follow the law.

Robert J. DuPont is an attorney with the law firm of Wilner & O'Reilly, managing its Beverly Hills Office. Mr. DuPont Graduated from Yale University and USC Law School and is admitted to the California Supreme Court, and Federal District Courts in the Central and Northern Districts of California as well as the 9 th Circuit Court of Appeals. Mr. DuPont has a published decision changing USCIS policy in the 9 th Circuit Court of Appeals regarding V-Visas.

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