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Family-Based Adjustment of Status

I consulted with a father and son who were contemplating separating their family because the entire family had become Lawful Permanent Residents (LPR) except for the son. The son was frustrated because he had a college degree but could not use it since his previous immigration petitions had been denied and he was out of status. He was thinking about leaving his family behind and moving abroad so that he could work. He had originally entered the United States as a student, but the USCIS had denied his application for LPR status on a technicality. The USCIS reasoned that the Child Status Protection Act (CSPA) was inapplicable and did not afford him an opportunity to adjust his status because he was now too old or had aged-out. Several other attorneys followed the denial with family and employment-based petitions, but they were denied because he had fallen out of status.

I thought that this was unfortunate as the son explained that there were several companies that wanted to hire him because his degree was in a highly sought-after field. Some of the companies offered to sponsor him for work authorization if there was any way to help resolve his immigration status. During the consultation, we made a timeline of the events that had occurred and reviewed the denial that he had received from the USCIS. I then started my research.

Applying the client’s timeline and confirming the documentary evidence to support the timeline, I found a solution to the client’s problem. The USCIS adjudicator had applied the wrong CSPA test for the facts of the matter. Depending upon the facts of a particular matter, an adjudicator must apply the appropriate CSPA test as there are more than one. It was true that the CSPA analysis conducted by the adjudicator did not apply, but the adjudicator never bothered to see if another CSPA test applied. It turned out that the CSPA test that applied still afforded the client the ability to adjust his status to that of an LPR. I discussed my strategy with the client, and he agreed to move forward. We filed a Motion to Reopen, and it was granted, and he received his LPR card. He is now gainfully employed with one of those companies that was interested in him. Best of all, the family was not separated.