USCIS Policy Updates on CSPA Age Calculation & “Sought to Acquire” Requirement under CSPA on Adjustment of Status Cases – Confusion and Heartbreak for Consular Processing Applicants

Aug 31, 2023 | Immigration Updates, Investor Visas

By WR Immigration – Joseph Barnett, Jinglin “Kim” Sogbesan, Bernard Wolfsdorf

Summary – Two USCIS Policy Updates regarding CSPA 

New USCIS Policy on CSPA Age Calculation Effective Since February 14, 2023:

  • On February 14, 2023, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Alert containing important new policy guidance in the USCIS Policy Manual. This guidance updates the critical issue of when an immigrant visa “becomes available” for the purpose of calculating 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 now allows the Date for Filing (Chart B) to calculate these green card applicants’ 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. 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. 

USCIS Policy Updates on “Sought to Acquire” Requirement under CSPA Effective Since August 24, 2023:

  • On August 24, 2023, USCIS issued a Policy Alert, updating its Policy Manual, clarifying how USCIS will apply the extraordinary circumstances exception to the “sought to acquire” requirement under the CSPA in light of the February 14, 2023 policy change referenced above.  
  • In summary, USCIS confirms that it considers the recent February 14, 2023 policy change to be an extraordinary circumstance that may excuse the “sought to acquire” requirement under the CSPA in particular situations. This policy applies to adjustment of status applications adjudicated by USCIS on or after August 24, 2023. 

Background:

  • The 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. 

  • Another key requirement for derivative children to obtain CSPA protection is that 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 Adjustment of Status applicant must be filed within one year of “visa availability”. In the context of consular processing, this requirement can be satisfied by submitting a completed Form DS-260 or certain other actions as listed in the USCIS Policy Manual
  • A noncitizen who does not satisfy this “sought to acquire” requirement may still benefit from the CSPA if they can establish that their failure to meet the requirement was the result of extraordinary circumstances. 

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
    • 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, 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, namely Chart A. 

USCIS Updates :

What is the main content of USCIS Policy Alert issued on February 14, 2023? 

  • 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

What is the main content of USCIS Policy Alert issued on August 24, 2023? 

  • USCIS clarifies that: 
    • The Feb. 14 policy change is considered an extraordinary circumstance that may excuse an applicant’s failure to meet the “sought to acquire” requirement;  
    • USCIS may excuse an applicant’s failure to meet the sought-to-acquire requirement if they did not apply to adjust their status because they could not calculate their CSPA age under the prior policy or their CSPA age would have been calculated as over 21, but they may now be eligible for CSPA age-out protection under the new policy; 
    • USCIS considers applicants to have met the sought-to-acquire requirement if their application to adjust their status was pending on Feb. 14, 2023 and they applied to adjust their status within 1 year of a visa becoming available based on the Final Action Dates chart under the policy guidance that was in effect when they applied. 

IMPACT OF THE UPDATES:

With the Feb 14, 2023 revised guidance, a child’s CSPA age will be locked, on the first date of the month that USCIS accepts filing of the child’s adjustment of status application, following the monthly USCIS Adjustment of Status Acceptance Chart, when the child files Adjustment of Status application within one year from the first date of the month when USCIS accepts filing of the child’s adjustment of status application.  

Furthermore, with the Aug 24, 2023 revised guidance, many derivative children who have missed their “one-year window” for filing Adjustment of Status applications because they could not calculate their CSPA age under the prior policy (or their CSPA age would have been calculated as over 21), can now try to establish that their failure to meet the requirement was the result of extraordinary circumstances, including the Feb. 14, 2023 policy update, as USCIS just confirmed in the August 24, 2023 policy update. 

The Problem:

The U.S. Department of State guidance in the Foreign Affairs Manual – 9 FAM 502.1-1(D)(4) – 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. 

CSPA applies to immigrants applying abroad for an immigrant visa through the Department of State consular process and to immigrants physically 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. 

Conclusion:

  • These two policy updates 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 derivative children who did not submit an Adjustment of Status applicants because they have turned over 21 under the prior policies, should consult with an immigration attorney and seek opinion on whether they can excuse their failure to meet the sought to acquire requirement using the policy change as an extraordinary circumstance. 
  • 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!

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