Basically, any immigrant petition that is currently pending, as well as any petition that is already approved but no final action on the beneficiary's application for adjustment of status or for an immigrant visa has been taken, is subject to the provisions of the new law. The intent of the new law is to preserve child status for certain alien beneficiaries who may have aged-out, particularly because of long delays in USCIS (legacy INS) processing. It radically changes the process for determining whether or not a child has "aged out" for the purpose of the issuance of visas and adjustment of status.

CSPA Section 2: This provision amends INA to add subsection (f) to § 201, and contains three different paragraphs (1), (2) and (3) [INA § 201(f)(1), (2) and (3)]. While each paragraph has its own different import, all three pertain to determining whether certain alien children are deemed to be “children” and continue to remain classifiable as “immediate relatives.” The term "immediate relative" is the key to a proper interpretation of Section 2. In that context, Paragraph (1) requires the Service to use the filing date of a Relative Petition (I-130) to determine the age of a beneficiary adjusting status (or applying for an immigrant visa at a consulate) and determine whether the beneficiary is deemed to be the child of a U.S. citizen. Only this provision makes the initial petition filing date as the governing date for the purpose of adjustment of status or visa issuance, regardless of the age of the immediate relative child on the final date. Under Paragraph (2), the governing date is the date of naturalization of the parent. If the child is under 21 on that date, then the child continues to remain an immediate relative child of a U.S. citizen, and eligible for adjustment of status or visa issuance, regardless of the child's age on the final date. Similarly, under Paragraph (3), the governing date is the date of termination of the child's marriage. If, on that date, the child is under 21, the child becomes and remains an immediate relative child of a U.S. citizen and can be deemed to be a child for the purpose of adjustment of status or visa issuance, regardless of the child's age on the final date.

Thus, in all three situations, the child must qualify as an immediate relative to be able to derive benefits of the newly added INA § 201(f).

Furthermore, regardless of whether a petition is or is not converted under this provision, if such unmarried son or daughter was assigned a second preference priority date before the parent's naturalization, he or she may continue to maintain that priority date. There is one more clarification that the treatment prescribed in § 6 is applicable to a petition if it is properly filed, regardless of whether or not it was approved before the parent's naturalization.

[NOTE: This is an amended version of the article originally published by ILW.com, with some hypothetical examples, on December 5, 2002.]

This law essentially permits substitution of any alternative family member as the new sponsor in case of the death of a petitioning relative. Indeed, the law provides a list of such relatives, which include: (1) spouse, (2) parent, (3) mother-in-law, (4) father-in-law, (5) sibling, (6) child (if 18 years of age), (7) son, (8) daughter, (9) son-in-law, (10) daughter-in-law, (11) sister-in-law, (12) brother-in-law, (13) grandparent, (14) grandchild, or (15) a legal guardian of the sponsored alien. Any one from this list could become a substitute sponsor, if he or she is able to satisfy the sponsorship requirements, which the original petitioner would have been required to satisfy.

The basic conditions for the application of this law are as follows: First, the petitioning relative must have died after the approval of the petition, because the USCIS has no authority to approve a visa petition after petitioner’s death. Second, the family member selected from the list of allowable relatives must execute an affidavit of support (Form I-864) for the sponsored alien and demonstrate the means to maintain an annual income equal to at least 125 percent of the Federal poverty guideline, and also submit, among other papers, the last three years of income tax returns, a statement of his/her bank, and a letter from his/her employer.

Initially, imagine the following two sets of companies. On the one hand, a U.S. subsidiary of a Japanese parent company, with a Japanese national in the United States in L-1A status; on the other hand, a U.S. subsidiary of a Swedish parent company.

The M&A context in this scenario is injected when the U.S. subsidiary of the Japanese parent company is purchased by the U.S. subsidiary of the Swedish parent company, lock, stock and barrel. As far as the Japanese national in L-1A status is concerned, he had worked for the Japanese parent company in Japan, but had never worked for any of the Swedish affiliated companies abroad.

For L-1A status in general, it is necessary to establish that the beneficiary of any nonimmigrant L-1 petition must have worked abroad with any qualifying organization in an executive or managerial capacity for at least one year in the preceding three years prior to coming to the United States. While there is an exception in a blanket L-1 petition scenario as of January 16, 2002, we are not concerned with that exception for our present discussion.

Now, to ensure a smooth transition after M&A, the purchase agreement between the Japanese and Swedish organizations requires that the Japanese L-1A employee must continue and discharge his managerial functions for the new company for one year. Because the acquisition has resulted in a material change in that the new employer is a different company, it has to file a new or amended L-1A petition to establish both: i) the new employer’s eligibility as an L-1 company, and ii) the beneficiary’s continuing eligibility as an L-1A employee. Indeed, there are several Central Office memos that clearly require such a new/amended filing within a reasonable time.

To establish the necessary qualifying corporate affiliation or parent-subsidiary relationship here, which is a necessary L-1 visa requirement, is rather easy. For it can be easily shown that there are two entities, one in the United States and one abroad, and that the U.S. entity is a subsidiary of a Swedish parent company. Also, there is no doubt that the Japanese national in L-1A status continues and will continue to work in a managerial capacity.

However, the tricky issue arises when we consider that the L-1A beneficiary had never worked abroad for either the new employer or any of its affiliates at any time in Sweden or any other country abroad. Therefore, the question is whether he continues to remain qualified, or ceases to qualify, for L-1A status after the M&A implementation.

I carefully pondered about the situation and researched it thoroughly but could not find anything in any resource materials directly on point, although I realize that there is a theoretical argument against my position that a contract between two private parties cannot overcome a limitation in the law itself. Nonetheless, I sincerely believed that there was a reasonably good possibility of advancing a creative idea based on the general concept underlying the “successor in interest” doctrine. My research led me to believe that the Service may be ready for taking one more step and recognizing my creative extension of that doctrine. My considered thought and calculated presentation, with the concurrence and confidence of my client in each instance, ultimately bore sweet fruits not just in one case but also in all identical cases thereafter in the last two years in various Service Centers.

Let me explain how I did it: My first and foremost argument was based on the concept of “successor in interest” for immigration purposes. One has to remember the evolving scenario regarding this concept. In the beginning, the Service interpreted it very narrowly in any immigration context, be it labor certification, I-140 petition, or nonimmigrant I-129 petition. This narrow and restrictive interpretation required a showing that the new company must have assumed all assets and liabilities of the purchased or merged company to be able to derive any right or interest emanating in any immigration context. Obviously, to allow any successor company to step into the shoes of the predecessor company only if it has purchased or assumed all assets and liabilities of the purchased/merged company was too unrealistic a gloss. It was unrealistic only because in the practical reality of the business world, rarely can a company demonstrate that it has assumed all liabilities of the purchased/merged company. In most M&A scenarios, it is primarily the asset purchase agreement or arrangement between two entities. There was therefore a continuous stream of objections to this initial interpretation for some time.

As the time passed by, the Service realized the undue strictness and the extremely limiting scope of such narrow interpretation, and at last refined it to make it a realistically liberal and workable one. Under the refined version, as explained in recent official policy declarations or guidance issued by the Director of Business and Trade Services of the BCIS Central Office, I quote:
The Immigration and Naturalization Service’s (INS) policy is that a new employing entity that is a successor in interest must file a new I-140 petition . . . . to establish that it has assumed the rights, duties, obligations and assets of the original employer . . . . [Internal citation omitted] Without such documentation the INS is unable to reaffirm the validity of the initial Form I-140 petition and the labor certification. The INS has taken the position that a company is a successor in interest when it has taken on all of the immigration-related liabilities of the company it has acquired, merged, etc. [Emphasis added] [See the INS correspondence referenced as: “HQ 70/6.1.3,” dated October 17, 2001, reproduced Appendix IV in 78 Interpreter Releases 1694-95, dated October 29, 2001.]

Indeed, the same office had provided a similar guidance in a nonimmigrant context a few months earlier on June 7, 2001:
. . . . The INS has consistently interpreted this requirement to mean that where a second company assumes substantially all of the assets and liabilities of the first company, . . . . . INS has also stated both at conferences and in correspondence that the assumption of liabilities refers to immigration-related liabilities, such as LCA obligations and violations thereof. It does not refer to non-immigration-related obligations and liabilities, such as environmental or tort obligations, for example. . . . . [Emphasis added] .”

Given this history and the fact that the INS (now USCIS) had been amenable to a more favorable and liberal interpretation of the concept of “successor in interest,” I believed that it was possible and time for someone to have it extended just a little bit further while the iron was hot, so to speak, to cover the issue under discussion. After all, when a company purchases or merges with another company with a condition that the purchased or merged company’s top level employee or employees must continue to work for the new company, obviously it is because of the need for a smooth transition. Also, if the new company assumes all the immigration-related liabilities and obligations, why should it not be allowed to assume all immigration-related rights and interests and thus assume whatever it takes to keep essential and key personnel in the United States, as long as all other legal requirements are satisfied. It is certainly reasonable and sensible to permit key and essential L-1A employees, brought at considerable efforts and expense, and who are already functioning as essential part of the corporate establishment in the United States, to continue in the same status that they have rightfully enjoyed from the beginning.

In a legal memorandum in each case, I advanced these and other arguments to claim continuing L-1A eligibility of all such employees.

Indeed, in my later cases, I also made a reference to the fact that other Service Centers (or the same Center in other identical cases) have approved a similar claim. Of course I did it just in a passing manner. I did not make, and I frankly stated that I was not making, an argument that my case should be approved simply because other identical cases had been recently approved by the same Service Center and other Service Centers. Obviously, that cannot be the sole reason for approval even in the same Service Center. Nonetheless, I submitted that it was a factor that could not be entirely neglected. Rather, it should be taken into account along with all other significant and substantial reasons. After all, uniformity is an avowed goal in the administration of immigration law. Indeed, uniformity and consistency in the administration of the immigration law may inspire confidence and increase agency credibility.

As one can readily see, the basic argument is no more than a slight extension of the interpretive process regarding the doctrine of “successor in interest” as applied to immigration cases, for it allows a new company to simply assume all the rights and interests held by the merged or the acquired company including the right/interest emanating from or inherent in the alien’s prior employment abroad. If the law as explained in the cited Service correspondence allows the new company to step into the shoes of the merged/acquired company and continue the immigrant and/or nonimmigrant visa process for any alien employee, there is no rhyme or reason not to allow it to continue employment of L-1A employees. Indeed, there is nothing in the law squarely prohibiting such limited extension of the concept of “successor in interest.”