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Based on the recent 9th circuit decision of Matter of Wang, can applicants use this decision to file for adjustment of status?

West Covina, CA |

Hello, based on the reversal of Matter of Wang in the 9th circuit court of appeals, I wanted to ask if a derivative beneficiary qualifies under the Child Status Protection Act, can we use this ruling immediately to file for adjustment of status if our original priority date is current with the visa categories, or do we have to wait to see if the Government (BIA) will file an appeal of the decision and take the this case all the way up to the supreme court. Basically what I am asking is that can we immediately use the reversal of Matter of Wang in the 9th circuit to obtain an original priority date if we meet the qualifications for CSPA, or must we wait to see what the BIA will do first?

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Attorney answers 3

Posted

First, you are really on top of this as the decision just came out yesterday.As stated in th blog by Benach Ragland LLP (link below):

It is unclear whether the Government will ask for cert. from the Supreme Court. It has 90 days to request cert. If asked for cert, the Supreme Court may or may not deny it. If it denies cert, the decision will still be law in the 9th and 5th circuit. Young people who have been aged out and thrust into removal proceedings may be able to adjust their status before an Immigration Judge under the jurisdiction of the Ninth and Fifth Circuits. In due time, the USCIS may also issue new regulations allowing every derivative beneficiary of a family-based or employment based to retain their original priority date and adjust their status to lawful permanent residents without much wait.

Also, if you are a derivative beneficiary who aged out a new petition will have to be filed which will be accorded the "old" priority date.

Asker

Posted

Thank you, and that makes sense, I hope USCIS will move quickly with this.

Ronald Jeffrey Tasoff

Ronald Jeffrey Tasoff

Posted

Actually, if no appeal is taken by the government then the decision becomes final and in the 9th and 5th and you won't need to wait for CIS to come up with regulations.

Asker

Posted

Oh okay that would be great! Hopefully they won't appeal, thank you so much for your help Mr. Tasoff.

Posted

You need to have an underlying petition in order to adjust your status. You cannot do so as a derivative.

You should retain an experienced immigration lawyer, whether myself or one of my colleagues, to review all the facts, advise you, and handle the case.

J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.

Posted

I am the lawyer who argued this matter before the 9th Circuit Court of Appeals. I suggest that you wait 90 days to see if the Government plans to ask the Supreme Court to review this matter.

(213) 394-4554 x0 Mr. Shusterman is a former INS Trial Attorney (1976-82) with over 35 years of immigration experience. His response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.

Asker

Posted

Thank you Mr. Shusterman for all your hard work on this CSPA victory! Do you think the government will take this to the supreme court? Also if I qualify to benefit from this decision currently and already filed a I-130 recently, would it be a bad idea to file for adjustment of status right now, or would it get rejected by USCIS?

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