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USCIS Has Updated the Child Status Protection Age Out Policy Calculation

February 17th, 2023 Kyle Behring

On February 14th, 2023, USCIS issued policy guidance in the USCIS Policy Manual to update when an immigrant visa “becomes available” for the purpose of calculating Child Status Protection (CSPA) age in certain situations. USCIS now allows the Date for Filing chart to calculate the age of children of visa petitioners. This new guidance is effective immediately, and applies to adjustment of status applications USCIS adjudicates on or after February 14th, 2023.

Background on CSPA

The CSPA was signed into law to address the issue of immigrant children “aging out” of their eligibility for immigration benefits as a beneficiary of their parents’ visa application due to the lengthy processing times. The CSPA addressed this problem by changing how the age of a derivative child is calculated for immigration purposes. Under the CSPA, a derivative child’s age is “frozen” at the time that an immigration petition is filed on their behalf, allowing them to remain eligible for immigration benefits even if they turn 21 years old while their application is still pending. The CSPA is only applicable for immigrants explicitly listed in the statute.

For employment-based preference categories, such as EB-5,  a child’s CSPA age is calculated by subtracting the number of days the initial qualifying petition was pending from the child’s age on the date a visa becomes available to the petitioner. (Age at time of visa availability – Pending time = CSPA Considered Age)

Between the enactment of CSPA and October 2015, the date an immigrant visa becomes available for the CSPA age calculation was tied to the chart published in the U.S. Department of State (DOS) Visa Bulletin (commonly referred to as the Final Action Dates chart). Beginning in October 2015, DOS began publishing two charts in the DOS Visa Bulletin. The two charts consist of a “Dates for Filing” chart and a “Final Action Dates” chart.

Since DOS implemented this change in 2015, USCIS designates one of the two charts, Dates for Filing or Final Action Dates, in the DOS Visa Bulletin each month for noncitizens to use in determining when to file an adjustment of status application. Importantly, to file an application for adjustment of status with USCIS, an applicant must have a visa “immediately available.” Under previous CSPA guidance, published in May 2018, USCIS only considered a visa available for CSPA age calculation based on the Final Action Dates chart.

After the publication of the May 2018 guidance, the same applicant for adjustment of status could have a visa “immediately available” for purposes of filing the application but not have a visa “become available” for purposes of CSPA calculation. Applicants who filed based on the Dates for Filing chart would have to pay the fee and file the application for adjustment of status without knowing whether the CSPA would benefit them.

USCIS Updates

To address this issue, USCIS has updated its policies, and now considers a visa available to calculate CSPA age at the same time USCIS considers a visa “immediately available” for accepting and processing the adjustment of status application. This update resolves any apparent contradiction between different dates in the visa bulletin and the statutory text regarding when a visa is “available”.

  • When USCIS determines there are more immigrant visas available for a fiscal year than there are known applicants for such visas, and USCIS announces that prospective applicants may use the Dates for Filing chart when filing adjustment of status applications, then USCIS also uses the Dates for Filing chart when calculating the applicant’s CSPA age.
  • When USCIS announces that a prospective applicant must use the Final Action Dates chart when filing the adjustment of status application, then USCIS uses the Final Action Dates chart when calculating the applicant’s CSPA age.

Based on the May 23, 2018, policy guidance, a derivative child’s CSPA age would continue to increase even if an adjustment of status application had been submitted based on the Dates for filing chart USCIS designated for adjustment of status application acceptance. This resulted in many derivative children waiting years for adjudication of their adjustment of status applications without knowing whether they would be able to eventually immigrate with their family.

This guidance, contained in Volume 7 of the Policy Manual, is effective immediately and applies to adjustment of status applications adjudicated by USCIS on or after February 14, 2023. The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance on the topic. In addition, noncitizens may file a motion to reopen their previously denied adjustment of status application with USCIS using a Notice of Appeal or Motion (Form I-290B). noncitizens must generally file motions to reopen within 30 days of the decision. For a motion filed more than 30 days after the denial, if the noncitizen demonstrates that the delay was reasonable and was beyond their control, USCIS may in its discretion excuse the untimely filing of the motion.

With this update and revised explanation, a child’s CSPA age will be locked in on the first date of the month when USCIS accepts filing of the child’s adjustment of status application, based on its monthly USCIS AOS Acceptance Charts. For a child to submit his/her own adjustment of status application, the date for the underlying preference immigrant petition which the child is immigrating based upon, shown on the USCIS AOS Acceptance Charts, must have reached beyond the priority date of the underlying immigrant petition. USCIS may designate either the Final Action Date chart OR the Date for Filing chart from the DOS Visa Bulletin, for the monthly USCIS AOS Acceptance Charts, based upon the actual availability of immigrant visas. Note, for a derivative child to take advantage of the CSPA calculation, the child must satisfy the “sought to acquire” requirement within one year of date when a visa becomes available for accepting and processing a potential adjustment of status application. The “sought to acquire” requirement can be satisfied by properly filing an AOS, submitting a completed Form DS-160, or other actions as listed within USCIS Policy Manual.

Although USCIS new policy guidance focuses on the impact of CSPA calculation on adjustment of status applicants, it is noted in Volume 7 of USCIS Policy Manual: Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 7, Child Status Protection Act, Section B, Child Status Protection Act Applicability that, “CSPA applies to both noncitizens abroad who are applying for an immigrant visa through the Department of State (DOS) and noncitizens physically present in the United States who are applying for adjustment of status through USCIS. This chapter primarily focuses on the impact of CSPA on adjustment applicants, though the same principles generally apply to noncitizens seeking an immigrant visa through DOS.”   DOS has not yet confirmed whether it will accept the Date for Filing chart for purposes of age-protection for derivative beneficiaries.

In Conclusion

This Policy Update will benefit many immigrant petitioners with children who are planning on submitting an adjustment of status application. As USCIS updates its AOS Acceptance Charts monthly (typically by the 15th day of the current month it publishes the new charts for next month), and it is unpredictable which one of the two charts on the DOS Visa Bulletin USCIS will designate for the monthly USCIS AOS acceptance, it is important for Petitioners to check the USCIS AOS Acceptance Charts on a monthly basis, and prepare and submit the adjustment of status applications during the month when the date shown on the USCIS AOS Acceptance Charts is beyond the priority date of their immigrant petition.

Policy Highlights

  • Explains that USCIS considers a visa available for purposes of CSPA age calculations at the same time USCIS considers a visa available for accepting and processing the adjustment of status application.
  • Clarifies that the 1-year period during which a noncitizen must seek to acquire lawful permanent residence for CSPA starts when a visa becomes available for accepting and processing a potential adjustment of status application. However, USCIS may, in its discretion, take into account certain extraordinary circumstances for failure to seek to acquire lawful permanent residence within 1 year of visa availability.
  • Explains the effect of transferring the underlying basis of a pending adjustment of status application on CSPA age calculations and on the “sought to acquire” requirement.

Summary of Changes

Affected Section: Volume 7 > Part A > Chapter 7 > Section F, Family and Employment-Based Preference and Diversity Immigrants

  • Provides minor stylistic edits and technical updates throughout, such as additional citations to authorities and cross references.
  • In Subsection 2 (Child Status Protection Act Age Calculation), makes technical updates to examples, adds a footnote to the first example, and revises footnotes.
  • In Subsection 4 (Determining Age at Time of Visa Availability), revises the second bullet in the second bulleted list and removes associated footnote.
  • In the same Subsection 4, revises first italicized subheading and guidance under that subheading, and removes second italicized subheading and the two following paragraphs.
  • Revises Subsection 5 (Impact of When a Visa is Authorized for Issuance on the Child Status Protection Act Age Determination) in full and relocates and revises last two paragraphs to new Subsection 6 (Visa Was Available for Accepting and Processing the Adjustment of Status Application but Becomes Unavailable Before Application is Filed).

Affected Section: Volume 7 > Part A > Chapter 7 > Section G, Sought to Acquire Requirement

  • Revises first paragraph in section introduction and makes minor stylistic and technical updates throughout section.
  • In Subsection 1 (Satisfying the Sought to Acquire Requirement), adds a new paragraph after the bulleted list and revises the last paragraph
  • Revises Subsection 2 (Visa Availability and the Sought to Acquire 1-Year Period) in full.

Sources and Citations

Please note: Summary information and analysis in this post has been sourced from the USCIS Policy Alert, issued on February 14th, 2023, as well as the Wolfsdorf Rosenthal LLP article, “Updates on Child Status Protection Act Age Calculation by USCIS “, originally posted February 15th, 2023. Read the original article in full here: Updates on Child Status Protection Act Age Calculation by USCIS – WR Immigration (wolfsdorf.com)

Disclaimer: The information provided in this article is for general informational purposes only and is not intended to be legal advice. You should not rely on this information as a substitute for seeking the advice of an immigration attorney or other qualified legal professional.

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