By Bernard Wolfsdorf, Joseph Barnett, and Jinglin Kim He
Summary:
- On February 14, 2023, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Alert, which contains important new policy guidance in the USCIS Policy Manual. This guidance updates the critical issue of when an immigrant visa “becomes available” for purpose of calculation CSPA age in certain situations. In order to freeze a child’s age, or lock the CSPA age, a visa must be “available”. In short, USCIS will now allow the Date for Filing (Chart B) to calculate these green card applicant’s age. This is a giant leap forward because Chart B can provide protection for many more derivative child applicants, especially at the beginning of the fiscal year when Chart B usually moves the most.
- This guidance was effective immediately on February 14, 2023, and applies to adjustment of status applications USCIS adjudicates on or after February 14, 2023. Green card applicants with pending adjustment of status applications based on immigrant petitions in a preference category, on or after February 14, 2023, will benefit from this update.
The Problem:
The U.S. Department of State guidance in the Foreign Affairs Manual {insert here}has not been updated and urgently requires change because it makes absolutely no sense to have protection for children applying for green cards in the U.S. whereas Children applying abroad and patiently waiting for consular appointments are unable to freeze their age using the highly preferential Date for Filing (Chart B) waiting line. This creates an unfair advantage and absurdity.
Background:
- The Child Status Protection Act (CSPA) was signed into law on August 6, 2002, and addresses the problem of immigrant children who “age out” and lose eligibility for derivative immigration benefits due to the lengthy processing times. The law changes the way the age of a derivative child is calculated for immigration purposes.
- For family-sponsored and employment-based preference and Diversity Visa categories, the basic formula for calculating CSPA age is as follows:
Age at time of visa availability – Pending petition time = CSPA Age. However, in addition, the applicant must “seek to acquire a visa” within one year of “visa availability”. So the question arises as to when a visa is available,. USCIS updated their guidance to include chart B, the new system created by the 2017 Modernization regulations. {link}.
Issues Prior to USCIS Updates:
- From CSPA enactment to October 2015
The date an immigrant visa became available for the CSPA age calculation was tied to the DOS Visa Bulletin Final Action Date (Chart A).
- From October 2015 (not 2017?)
DOS began publishing two charts in the DOS Visa Bulletin. The two charts consist of “Dates for Filing” chart B and a “Final Action Dates” chart A.. Since then, USCIS has been issuing Adjustment of Status Filing Charts from the Visa Bulletin (USCIS AOS Acceptance Charts) each month[1], designating one of these two charts, Dates for Filing or Final Action Dates charts, for noncitizens to refer to in determining when to file a family-sponsored or an employment-based adjustment of status application.
- In a previous Policy Alert {link} issued on May 23, 2018, USCIS confirmed that the date an immigrant visa becomes available for the CSPA age calculation was tied to the Final Action Dates chart.
USCIS Updates:
- Content of USCIS Policy Alert?
USCIS revised its definition of “time of visa availability”. Now instead of having it tied to the Final Action Dates chart, USCIS 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.
Impact of the update.
With this revised guidance, a child’s CSPA age will be locked, on the first date of the month when USCIS accepts filing of the child’s adjustment of status application, following the monthly USCIS Adjustment of Status Acceptance Chart.
This is life-changing for many derivative children seeking adjustment based on a preference immigrant petition. The previous May 23, 2018, policy guidance allowed a derivative child’s CSPA age to continue to increase even though an adjustment of status application had been filed based on the Dates for Filing chart B USCIS had designated for adjustment of status application acceptance.
Continuing Problem
- CSPA applies to both immigrants applying abroad who are applying for an immigrant visa through the Department of state consular Process and to immigrants physically present in the United States who are applying for adjustment of status through USCIS. The USCIS guidance focuses on the impact of CSPA on adjustment applicants. Sadly DOS has not yet confirmed whether it will accept the Date for Filing chart for purposes of age-protection for derivative beneficiaries.
- The other key requirements for derivative children to obtain CSPA protection
The child must satisfy the “sought to acquire” requirement within one year from the date when a visa becomes “available”. In the adjustment context this means the I-485 must be filed within one year of the visa becoming available for acceptance under chart B. in the context of consular processing the “sought to acquire” requirement can be satisfied by submitting a completed Form DS-230, or certain other actions as listed on USCIS Policy Manual. {link and quote}
Conclusion:
- This policy update will benefit many derivative children who have submitted and who plan to submit adjustment of status applications in the U.S.
- It remains critical for immigrant applicants seeking to adjust status based on a preference immigrant petition, 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 underlying preference immigrant petitions.
- Any immigrants with a current filing date based on the USCIS AOS Acceptance Charts, should consult with an immigrant attorney, prepare and submit AOS filing as soon as possible, especially for family with eligible derivative children, or face aging out..
Disclaimer:
The information provided in this article is for general informational purposes only and is not intended to be legal advice. Immigration law is complex and constantly changing, and the information provided may not apply to your specific situation. You should not rely on this information as a substitute for seeking the advice of an immigration attorney or other qualified legal professional. If you have an immigration issue, you should consult with an attorney who can provide you with legal advice based on your particular circumstances. To schedule a consultation with WR Immigration, you can reach out to WR Immigration.
For more information on Visa availability, check out WR immigration’s “Chatting with Charlie” series on YouTube!
