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  • president cspa

    The analysis of Atty. Metha of the cspa on Section.3 did not deal squarely on the automatic conversion to the appropriate category portion of the law particularly to that of the derivative children.

    He has reason to doubt. He said that the peition was not filed for the derivative child and it is difficult to conceive to convert said petition to another category.

    Right, that was true. The petition was filed under the old law and the old law governs.

    But this old law was amended by the CSPA. The CSPA expressly recognized the "alien's petition" under subsection (B) RETENTION OF PRIORITY DATE.

    Under Section 3, the alien is specifically referred to as the child petitioned under Sebsection (a) (2) (A) by a green card hold, and,

    Under Subsection (d), the word "alien" was also mentioned as the child of the "alien's parent".

    Nowhere in the CSPA,dthe word "alien"s petition" is referred to the benenficiaries petitioned under F3 and F4 categories but it is referred to the "alien" under the "Retention of priority date".

    I, too has doubt, I also believe that this portion of the is ambibuous.

    But there is a rule in our jurisprodence that when the law is ambiguous, the court, in order to resolve the ambiguity look at the history and the intention of the legislature. The INS, which has the ulitmate say on the matter, if it recognizes the law's ambiguity. will no doubt decide on the which the law intends.

  • #2
    The analysis of Atty. Metha of the cspa on Section.3 did not deal squarely on the automatic conversion to the appropriate category portion of the law particularly to that of the derivative children.

    He has reason to doubt. He said that the peition was not filed for the derivative child and it is difficult to conceive to convert said petition to another category.

    Right, that was true. The petition was filed under the old law and the old law governs.

    But this old law was amended by the CSPA. The CSPA expressly recognized the "alien's petition" under subsection (B) RETENTION OF PRIORITY DATE.

    Under Section 3, the alien is specifically referred to as the child petitioned under Sebsection (a) (2) (A) by a green card hold, and,

    Under Subsection (d), the word "alien" was also mentioned as the child of the "alien's parent".

    Nowhere in the CSPA,dthe word "alien"s petition" is referred to the benenficiaries petitioned under F3 and F4 categories but it is referred to the "alien" under the "Retention of priority date".

    I, too has doubt, I also believe that this portion of the is ambibuous.

    But there is a rule in our jurisprodence that when the law is ambiguous, the court, in order to resolve the ambiguity look at the history and the intention of the legislature. The INS, which has the ulitmate say on the matter, if it recognizes the law's ambiguity. will no doubt decide on the which the law intends.

    Comment


    • #3
      The CSPA did not refer the word "alien petition" to beneficiaries petitioned under the F3 and F4 categories, but it does under the "RETENTION".

      The legislature was not too specific in stating that the "Petition" is converted into "alien's petition" and I believe that was the intention, otherwise, derivative children are to benefit by the CSPA.

      Comment


      • #4
        The CSPA did not refer the word "alien petition" to beneficiaries petitioned under the F3 and F4 categories, but it does under the "RETENTION".

        The legislature was not too specific in stating that the "Petition" is converted into "alien's petition" and I believe that was the intention, otherwise, derivative children are NOT to benefit by the CSPA.

        Comment


        • #5
          Dear Boni:

          I have noted your points and I will give you a detailed answer point by point referring to the new law. If the intention of the congress was to benefit only F2A, they did not have to discuss the derivatives at all.

          The law does describe the petitions that are covered for "conversion" under "PETITIONS DESCRIBED". They did not have to discuss the over 21 at all, if they did not intend to provide relief.

          I will respond to this tomorrow. You may also want to look at the analysis by another rather large law firm http://www.fragomen.com

          They do not seem to have even an iota if doubt. I suggest that you read the entire analysis on their site.Following is the analysis from fragomen.com.

          "The Act does state that notwithstanding the relief provided in this provision, if the age of the foreign national son or daughter is determined to be 21 or over at the time that a visa number is available, the petition will automatically be converted to the appropriate category, most likely the son or daughter of a permanent resident. Additionally, the son or daughter will be able to utilize the priority date associated with the original petition, rather than having to start over again, which is currently the case."

          Again, I believe that the INS & DOS would be hard pressed to overlook similar opinions of the Immigration Lawyer's community. If they do overlook th eintent of the law and the opinions of the legal community, they will only expose the INS to future litigation.

          Comment


          • #6
            SUBSECTION (2) PETITION DESCRIBED-- These are the PETITIONS filed under the F3 and F4 categories.

            I am referring to the "aliens's petition" under Subsection (3) RETENTION OF PRIORITY DATE.

            Can you enlighten me on this. I would like to beleive that the legislature would intend it to be the same as the PETITIONS DESCRIBED because of its conversion to the appropriate category and retention of priority date. And where else can it be referred to?

            Comment

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