In some positive news, the U.S. Citizenship and Immigration Services has issued guidance in the USCIS Policy Manual updating when an immigrant visa number “becomes available” for the purpose of calculating a noncitizen’s age in certain situations under the Child Status Protection Act (CSPA).
For a child to obtain lawful permanent resident status in the United States based on their parent’s approved petition for a family-sponsored or employment-based visa, the child generally must be under the age of 21. If the child turns 21 during the immigration process, the adult child generally is no longer eligible to immigrate with the parent based on the parent’s petition.
Congress enacted the Child Status Protection Act (CSPA) to protect certain noncitizen children from losing eligibility to obtain lawful permanent resident status based on an approved visa petition by providing a method to calculate the child’s age that considers when an immigrant visa number “becomes available.” The formula provides beneficiaries of a pending or approved I-130/I-140 petition to preserve their age as under 21, despite being over 21 by allowing the time the petition was pending to be subtracted from the child’s age when the priority date becomes current (a visa number becomes available) per the visa bulletin.
In order to calculate an applicant’s age under CSPA and to find whether the applicant is eligible to get visa you need to know following details:
Priority Date: It is the date when the original I-130/I-140 petition was filed
Approval Date: The date when the I-130/I-140 petition was approved by USCIS
Visa Availability date: A visa availability date means an immigrant visa number is available as per the
“Dates for Filing” chart on the Department of State visa bulletin
Date of Birth of the Child
The Department of State’s Visa Bulletin is used to determine when a visa number becomes available. The Visa Bulletin has two charts – the Dates for Filing chart and the Final Action Date chart. Prior to this recent policy update, USCIS considered a visa available for purposes of the CSPA age calculation based only on the Final Action Date chart, even if a noncitizen could apply for adjustment of status using the earlier date in the “Dates for Filing” chart per USCIS Adjustment of Status Filing Chart. The Final Action Dates chart typically runs behind the Dates for Filing Chart by a few months to years. As such, applicants for adjustment of status continued to age out after using the “Dates for Filing” chart, and eventually denied adjustment of status.
Under this new guidance, USCIS will now use the Dates for Filing chart to calculate an applicant’s age for CSPA purposes, which will provide applicants for adjustment of status more certainty about their eligibility to adjust status. If these derivative children are eligible to adjust status because of the change in policy and they have filed for adjustment of status, they will also be eligible to apply for employment and travel authorization based on their pending adjustment of status application.
This USCIS policy change is effective immediately and applies to pending applications. Therefore, some applicants with a pending adjustment application may now have a CSPA age that is under 21 based on this change, and therefore qualify for adjustment of status.
Applicants previously denied adjustment of status under the prior policy may file a motion to reopen their previously denied adjustment of status application with USCIS. Applicants must generally file motions to reopen within 30 days of the decision. For a motion filed more than 30 days after the denial, USCIS may, in its discretion, excuse the untimely filing of the motion if the noncitizen demonstrates that the delay was reasonable and was beyond the noncitizen’s control.
We hope that the Department of State follows suit and adopts this new USCIS guidance for adult children who aged out or will age out under the previous policy.
For more information about the Child Status Protection Act and to find out if this new law impacts you or your children, please make an appointment with us here.