Should I file now?
Recently, the U.S. Court of Appeals for the Ninth Circuit issued an en banc decision in the class action Child Status Protection Act (CSPA) case brought by the law firm of Reeves & Associates. In the decision, De Osorio v. Mayorkas, the Ninth Circuit held that the CSPA does provide for retention of priority dates, even if a child turns 21 years old while waiting for a visa to become available. The government can request an appeal of this decision to the U.S. Supreme Court by filing for a writ of certiorari, which the Supreme Court can accept or reject. This “writ of cert” must be filed within 90 days (or, on or before December 26, 2012, or any extensions of the filing date). If the government declines to file an appeal, or if the Supreme Court declines to accept the case, the decision in the Ninth Circuit becomes final.
Some intending immigrants who qualify for a green card under the rule in De Osorio may be hesitant to file their applications now, before knowing whether or not the government will appeal the case to the Supreme Court, or whether the Supreme Court will overturn the decision of the Ninth Circuit. If a CSPA applicant files an application now, the application might ultimately be denied, in the event that the Supreme Court does overturn the decision of the Ninth Circuit. While that may pose some minimal risk, a potential applicant should consider the upsides of filing now, and should weigh the benefits against the potential consequences.
ADVANTAGES OF FILING NOW
Potential applicants under the CSPA class action lawsuit should consider the benefits that come with filing a green card application. One of the primary benefits of timely filing is the grant of authorization for lawful employment, and the attendant benefits of a social security card and a driver’s license. Filing for permanent residency now should result in the issuance of a work permit, even if the Supreme Court accepts cert (i.e., hears the appeal). If De Osorio does go to the Supreme Court, it may be years before the case is finally resolved. During that time, an individual who files an application now should be able to secure and renew work authorization while the application is pending.
In addition, visa availability will quickly regress in the “F-2B” category, and applicants who file now may be able to secure work authorization that can be renewed while waiting for a visa to become current again. If De Osorio does become final (either because the government does not seek appeal to the Supreme Court or because the Court rejects the appeal or rules against the government on appeal), there will likely be a flood of CSPA applicants under the “F-2B” category. This would result in a regression of priority dates by as much as 10 to 20 years. This means that while a visa might be available now, the visa will not be available a few months from now, and intending immigrants who have not already filed an application for permanent residency will need to wait for the priority date to become current before filing. If priority dates regress after an application has already been filed, the application will be held in abeyance, but the applicant will be permitted to maintain and renew work authorization until the priority date becomes current again.
RISKS OF FILING NOW
Potential applicants should also consider the risks of filing now. If the Supreme Court does overturn the Ninth Circuit decision in De Osorio, a pending application would likely be denied, and the filing fees paid to file that application will not be refunded. Most attorney fee agreements would not provide for a refund under that circumstance. There is a possibility that a denial could result in referral to immigration court, although the actual risk of this consequence is extremely low in light of Obama administration policies against referring cases that do not have criminal or security issues or significant immigration violations, and in consideration of family ties.
WEIGHING THE BENEFITS AGAINST THE RISKS
An intending immigrant who might be eligible for permanent residency under De Osorio should consider all lawful options, and should carefully weigh the upsides of filing now against the possible risks. On the one hand, an application filed now might be able to secure work authorization, and secure their place in line for permanent residency, in the event that priority dates regress. On the other, the likely risk is a loss of filing fees and attorney’s fees, and arisk (albeit remote) of being placed in immigration court.
There is no guarantee that if a person files now, the work authorization application will be granted. There is no guarantee that the Supreme Court will not overturn the decision of the Ninth Circuit. However, delay in filing to wait and see what happens at the Supreme Court may put a potential applicant in a position of waiting many many more years for a priority date to become current after a severe regression, and if this regression occurs before the application is filed, the potential applicant will not be able to secure work authorization or be able to seek gainful employment.
There is a gamble that if an applicant files now, the applicant might lose the filing fees and attorney fees. However, the upside of the gamble is the potential benefit of lawful work authorization, work authorization that can be renewed even when priority dates regress. When the class action litigation is finalized, we at Reeves & Associates will lobby Congress to provide 50,000 additional visas to accommodate aged-out children and prevent a severe visa backlog. However, there is no guarantee that Congress will agree to expand the visa quota. In the event of regression, the only way to secure that work authorization is to file now.
If you believe you are qualified under De Osorio, you should consult with an immigration attorney to discuss your options.