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More CSPA News (Nakka v. USCIS)

February 15, 2023 (1 min read)

Brent Renison writes:

"I am happy to report that we have obtained partial victory in our 3 year long class action lawsuit over CSPA (Nakka v. USCIS) which I just argued at the Ninth Circuit last week. 

USCIS changed its policy yesterday to apply Dates for Filing as published by USCIS to lock a child’s age for CSPA purposes, rather than Final Action Date. The old policy had resulted in children of backlogged immigrants (mostly Indian born) filing a derivative adjustment of status application based on DFF only to receive a denial when the FAD chart failed to become current for issuance before the child’s CSPA adjusted age 21. We argued that the term “becomes available” under CSPA was in line with DFF which permits adjustment of status filings where 245(a) requires an “immediately available” visa, and not in line with the FAD chart which relates to the actual visa issuance. This is a partial victory in our lawsuit, although many questions remain as the USCIS policy manual update leaves out those who legitimately chose not to file adjustment of status based on DFF in fear of ultimate denial, to pursue F-1 or other nonimmigrant status, since the current guidance still contains language about retrogression of the DFF chart resulting in the age not being locked in without an adjustment filing. More information can be found on our website about the lawsuit: 

USCIS noted it will be addressing changes in a regulatory filing (NPRM) in the coming months, which is much needed because government policies that are taken without public input have a heightened risk of being flawed. 

Credit for this policy change is also owed to Dip Patel of Improve the Dream, a group of Documented Dreamers advocating for the backlogged aging out community. Our law clerk Kristine Quint and Associate Attorney Sadie Wolff assisted with research and writing on the briefs." 

Brent Renison | Immigration Attorney | Parrilli Renison LLC
610 SW Broadway | Suite 505 | Portland, OR 97205 | USA
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