CSPA Lawsuit for Children Aging Out Due to Nationality

December 1, 2019

Our firm is pursuing a class action lawsuit to seek equal treatment in the way a child’s age is calculated with respect to derivative immigrant status under the Child Status Protection Act (CSPA). Currently, some children have no hope of ever immigrating together with their parents because of the decades long wait for an immigrant visa, and because CSPA only fixes a child’s age as under 21 years of age when the priority date becomes current. Due to per country limits in the law, some children will not ever remain under 21 years of age because priority dates take longer than 21 years to become current. Unfortunately, USCIS does not allow children to keep their place in line either, even if the parents file for the children after becoming lawful permanent residents. They have to step all the way back in line and start over. This narrow view has been upheld by the Supreme Court, even though the agency could have taken the broader view and also had that interpretation upheld. See Scialabba v. Cuellar de Osorio, 573 US 41 (2014). What is more, USCIS has adopted a narrow view of which of the two charts may be used for the CSPA calculation, choosing to use the less advantageous “final action date” chart instead of the “dates for filing chart” for purposes of calculating a child’s age under CSPA (see Cyrus Mehta’s blog on this). All this narrow interpretation works a serious inequity upon children who are born in certain countries affected by the backlog. We believe this unfair treatment is a denial of equal protection under the U.S. Constitution.

The Supreme Court has said that Congress regularly makes rules that would be unacceptable if applied to citizens. One can debate the wisdom of that holding but it is established precedent in America’s highest court. This will undoubtedly be an uphill battle. When challenging an immigration law on Equal Protection (EP) grounds, the courts usually use the rational basis test, which allows the unfair law to remain in operation as long as the government can prove that the law is rationally related to a legitimate government purpose. The application of per-country caps to limit the number of individuals being admitted based on country of birth would probably survive this kind of test (meaning, it would be upheld) because the government arguably has a legitimate interest in ensuring that nationals of any one country do not take all of the visa numbers available. Whether or not this is good policy is another issue, and we believe it is not. But it is an entirely different matter to foreclose all possibility of immigration for the children of immigrants from certain countries (at present, India), while protecting the children of immigrants from other countries. This does not serve a legitimate government purpose. We believe that this unfair treatment can be struck down.

What happens if we succeed in the litigation? We will ask the courts to allow children from all countries, regardless of nationality, to use the “other countries” worldwide visa bulletin dates for purposes of calculating age under CSPA. This would be “equal treatment” under law, and would result in most children remaining eligible to immigrate together with their parents, even those born in India, as opposed to the present situation in which almost all Indian born children will not ever become eligible. We will also ask the courts to allow CSPA eligible children to be eligible for H-4 extensions as long as they remain CSPA eligible. This places them in an equal position to other children. The only thing that this lawsuit cannot seek to do is eliminate the per country caps, or the long waits for immigrant visas for some countries, which can only be fixed through legislation passed by Congress.

Seeking Plaintiffs

If you are a derivative beneficiary whether under 21 and facing losing your derivative eligibility, or you have lost your eligibility already because you are now over 21 years of age, please consider completing the questionnaire below with the relevant details for potential consideration as a plaintiff in the lawsuit to represent the class of people who are being harmed by this discriminatory set of laws and practices.

What is a class action and do I need to participate to get relief from the lawsuit?

This lawsuit will be filed as a “class action.” What this means is that a limited number of plaintiffs will include the facts of their cases in the lawsuit, and will seek to represent all the other affected individuals, who are called “class members.” Class members may provide affidavits or declarations explaining their circumstances, and request the court to have the plaintiffs represent them, but most class members do not participate in the lawsuit at all. Rather, this type of class action does not require any participation to be included in the relief that the lawsuit is seeking. Without plaintiffs, however, we can’t seek justice for anyone.

What does it mean to participate as a plaintiff?

Those who were selected to be plaintiffs wish to represent others through this lawsuit to obtain justice and equal treatment for themselves and also for others. Plaintiffs were required to provide information to our law firm and documentation of their claim. Plaintiffs will probably not need to appear in court, because it is unlikely that the government will contest any of the facts. This will be a legal challenge and not a factual one. It is prohibited for any government agency to retaliate against someone seeking justice through the courts, and plaintiffs should not fear their cases will be put in jeopardy by participating in the lawsuit.

Costs to participate

Our firm will be taking this on a pro bono basis, which means we will not collect legal fees from any plaintiffs or class members. You will not be required to pay money to participate in this lawsuit. If any of the plaintiffs are required to travel for any court appearances (which is very unlikely), we will seek to raise funds for the purpose of covering these costs.

NOTE: Completing this form does not obligate you to participate. Completing this form does not obligate our firm to represent you in this lawsuit. Completion of the form helps us track all the cases. No attorney-client relationship is created merely by completing this form. Before we agree to represent you there must be a written agreement to do so.