United States (US) Citizenship and Immigration Services (USCIS) provided welcome updated guidance to its Policy Manual regarding when an immigrant visa “becomes available” for the purpose of calculating the Child Status Protection Act (CSPA) age for certain foreign national derivatives. The updated guidance was effective immediately on February 14, 2023. Under previous CSPA guidance, published in May of 2018, USCIS only considered an immigrant visa available for CSPA age calculation based on the Final Action Dates chart. Now, the Dates for Filing chart provides relief to certain CSPA derivative applicants for immigrant visas.
- A foreign national child must be under the age of 21 and unmarried in order to obtain a permanent residence (green card) based on a parent’s family-based or employment-based immigration case. If a child turns 21 during the application process (even while the permanent residence/adjustment application is pending), the child is at risk of “aging out” and losing eligibility for permanent residence (green card) as a derivative.
- The CSPA applies differently to family-sponsored and employment-based preference and DV adjustment applicants than it does to refugee, asylee, and Immediate Relative (IR) adjustment applicants. For example, for IR applicants, the CSPA age is frozen on the date the form I-130 (Petition for Alien Relative) is filed. For Family Sponsored Preference principals and derivatives, the CSPA age is determined by subtracting the number of days the Form I-130 was pending from the applicant’s age on the date an immigrant visa number become available AND the applicant must “seek” to acquire lawful permanent residence within one year of the immigrant visa becoming available. For Employment Based Preference Derivatives, the CSPA is determined by subtracting the number of days the I-140 form was pending from the applicant’s age on the date an immigrant visa number becomes available AND the applicant must “seek” to acquire lawful permanent residence within one year of the immigrant visa becoming available.
- Prior to the CSPA, many children were “aging out” and losing eligibility due to green card application backlogs and long processing times. Congress recognized this harm and enacted the CSPA in 2002, which protected some children in this situation.
- Department of State’s Two Chart Dilemma Created by the Visa Bulletin
- Prior to October 2015, the CSPA age calculation was straightforward because the Department of State’s monthly Visa Bulletin only contained a single chart listing the immigrant visa availability for each country and immigrant visa preference category. In October of 2015, however, the Department of State began publishing two charts in its monthly Visa Bulletin: 1) a “Dates For Filing” (DFF) chart (which notifies immigrant petition beneficiaries when they may apply for immigrant visas); and 2) a “Final Action Dates” (FAD) chart (which notifies immigrant petition beneficiaries when immigrant visas are authorized for issuance).
- Every month since the Department of State implemented the two-chart change, USCIS has designated one of the two charts, either the DFF or FAD chart, for potential immigrant visa beneficiaries to use in determining when to file their I-485 adjustment applications. The DFF chart often allows an immigrant visa petition applicant to apply for permanent residence sooner than the FAD chart.
- In its guidance issued on May 23, 2018, USCIS confirmed that an immigrant visa “became available” for the CSPA age calculation based only on the FAD chart. As a result, an immigrant visa applicant, who filed an adjustment application (and paid the required fee) based on the DFF chart would not know whether the CSPA would benefit them. For example, if the child aged out before the FAD became available, the child‘s age was basically not protected by the earlier DFF chart based adjustment filing.
- CSPA Policy Update Benefits
- Under the new guidance, USCIS considers an immigrant visa to have “become available” for the CSPA age calculation at the same time USCIS considers a visa immediately available for accepting and processing an adjustment application for permanent residence (I-485). Thus, an adjustment of status application filed using the DFF chart no longer subjects the child to the same unfair roulette challenge as in the past. In addition, if the child seeks to acquire permanent residence within one year of “visa availability,” the benefit applies based on either the DFF or FAD charts, as applicable.
- Now when USCIS announces that immigrant petition beneficiaries may use the DFF chart to file adjustment applications, USCIS uses the DFF chart to calculate the applicant’s CSPA age. When USCIS announces that immigrant petition beneficiaries must use the FAD chart to file adjustment applications, USCIS uses the FAD chart to calculate the applicant’s CSPA age.
- This new guidance applies to I-485 adjustment applications adjudicated by USCIS on or after February 14, 2023.
- USCIS also allows foreign nationals to file a Motion to Reopen their previously denied (based on having “aged out” when not permitted to use the DFF based age) I-485 adjustment applications with USCIS using a Notice of Appeal or Motion (Form I-290B). While foreign nationals must generally file Motions to Reopen within 30 days of the decision, USCIS may, in its discretion, excuse the untimely filing of the motion if the foreign national demonstrates that the delay was reasonable and was beyond their control. This option should be assessed by all adjustment applicants denied prior to this change in policy via their immigration legal counsel.
About the Author:
Ian Nesteruk is a Member in the firm’s Phoenix office. He practices in the area of immigration law, representing corporate and individual clients in connection with non-immigrant employment-based visas, immigrant employment-based visas, and family-based immigration. He has experience in a range of non-immigrant employment-based classifications including H, TN, E, O and P visas. His immigrant employment-based experience is primarily in the technology industry and includes recruitment-based cases, outstanding researcher and extraordinary ability petitions, and national interest waivers. You may reach Ian at 602-889-5358 or INesteruk@dickinsonwright.com and you may visit his bio here.