How Effective Use Of The Federal Courts Can Obtain Immigration Benefits
On occasion when there are inconsistent policies at the immigration service or repeated errors by USCIS when adjudicating case it is necessary to resort to the ultimate authority, the Federal Courts.
Filing for relief in Federal District court can work and recently I obtained relief for 12 clients who filed requests to re-classify their immigrant visa category. These immigrants were petitioned by legal permanent resident parents who later naturalized. Their children then had their visa category changed from “F2B” to “F1” which for Filipino immigrants creates, at minimum, a ten-year delay in obtaining a current visa number for processing.
In enacting the Child Status Protection Act, Congress legislated a provision to re-classify upon the request of the immigrant re-classification to F2B status. Upon receiving a request to “re-classify” immigrants, consular officials are obligated to use the “F2B” category processing or priority date and, if it is current, must immediately schedule a processing interview with the client for issuance of the immigrant visa and travel documents. The 12 individuals mentioned above were the victims of the Embassy officials ignoring their requests to re-classify their immigrant visa category and interview the alien for their immigrant visa.
In suing the Department of State and USCIS, I named embassy officials from the Manila Embassy, the Manama Embassy in Bahrain and the London Embassy and demanded that these embassy officials and USCIS employees comply with the statute.
After some important rulings on the case in federal court, the Department of State agreed to comply with the law and allow these individuals to enter the United States as legal permanent residents. Had we not sought relief in Federal District Court, these clients would still be in Manila seeking entry to the United States.
In a separate but related case I persuaded the Immigration Service to re-classify an immigrant who originally filed their petition as F2A son or daughters of legal permanent residents under the age of 21. Here again the Department of State attempted to re-write the law. However upon obtaining a court ordered denial of their Motion to Dismiss the Department of State agreed not to use this reasoning to deny my client entry to the United States.
Remarkably, some government officers continue to refuse to honor reclassification requests or not give the request(s) the attention it deserves. Only continued vigilance based upon knowledge of the law will result in the success of your case.
Robert J. DuPont is the founding attorney for The Law Offices of Robert J. DuPont. Mr. DuPont graduated from Yale University and USC Law School. He is admitted to the California Supreme Court, Federal District Courts in the Central and Northern Districts of California, as well as the 9th Circuit Court of Appeals. Mr. DuPont has been a speaker at ILW, a leading immigration law publisher. He was the founder of the Immigration Law Committee with the Beverly Hills Bar Association. Mr. DuPont has risen to prominence with over a decade’s practice in the field of immigration law. He has brought cases to their successful conclusion before the EOIR, BIA, AAO, Federal District Court and 9th Circuit Court of Appeals.
A similar version of this article may have been published in the Asian Journal.