On February 14, 2023, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Alert, which contains policy guidance in the USCIS Policy Manual to update when an immigrant visa “becomes available” for purpose of calculation Child Status Protection Act age in certain situations. In short, USCIS will now allow the Date for Filing chart to calculate these noncitizens’ ages
As stated in the Policy Alert, this guidance is effective immediately on February 14, 2023, and applies to adjustment of status applications USCIS adjudicates on or after February 14, 2023. Therefore, noncitizens with pending adjustment of status applications based upon an immigrant petition in a preference category, on or after February 14, 2023, will benefit from this update.
Background
The CSPA is a United States federal law that was signed into law on August 6, 2002. The law was enacted to address the problem of immigrant children who “age out” of their eligibility for certain immigration benefits due to the lengthy processing times involved in the immigration system. The CSPA addressed this problem by changing the way that 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 a qualifying immigration petition is filed on their behalf, allowing them to retain their eligibility for certain immigration benefits even if they turn 21 years old while their application is still pending. CSPA only covers those immigrants explicitly listed in the statute and does not apply to any other immigrants or nonimmigrants.
Calculation of the CSPA age differs for each type of statutorily listed petitions. Specifically, for family-sponsored and employment-based preference and Diversity Visa categories, a child’s CSPA age is calculated by subtracting the number of days the petition on which the principal immigrant seek to immigrate was pending (pending time) from the child’s age on the date the immigrant visa becomes available to the immigrant (age at time of visa availability). The formula for calculating CSPA age is as follows:
Age at time of visa availability – Pending time = CSPA Age
Between the enactment of CSPA and October 2015, it was clear that 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, which is now known as the Final Action Dates chart.
However, 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 the implementation of this change in October 2015, 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 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
Among the several updates USCIS has published in this guidance, the one that casts the most critical impact on immigrants is its revised explanation of “time of visa availability”. Instead of having it tied to the Final Action Dates chart, USCIS 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 could be life-changing for many noncitizens immigrating based on a preference immigrant petition. Based on the May 23, 2018, policy guidance, a derivative child’s CSPA age will continue to increase even though an adjustment of status application has been submitted based on the Dates for filing chart USCIS designated for adjustment of status application acceptance. This has left many derivative children in limbo, who could be studying or working hard in the U.S. for years, waiting for adjudication of their adjustment of status applications, but not knowing whether they would be able to eventually immigrate with their family.
With this update and revised explanation, 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, 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. Besides, for a derivative child to take advantage of the CSPA calculation, the child must satisfy the “sought to acquire” requirement within one year from the 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 on 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..
Conclusion
This policy update will benefit many families with children who are planning on submitting adjustment of status application in the U.S. As USCIS updates its AOS Acceptance Charts every month (usually by the 15th of 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 remains critical for noncitizens immigrating 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. For both family-sponsored and employment-based preference filings, USCIS has designated Dates for Filing charts, for the current month and March 2023. Therefore, any immigrants with a current filing date based on the February and March 2023 USCIS AOS Acceptance Charts, should consult with an immigrant attorney, prepare and submit AOS filing as soon as possible, especially for family with derivative children.
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, contact us!
[1] Available at https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/adjustment-of-status-filing-charts-from-the-visa-bulletin
