USCIS issued new guidance regarding the Child Status Protection Act (“CSPA”) through an update to the USCIS Policy Manual. Sadly, the updated guidance does not offer expanded protection for children who may age out and, for the most part, simply mirrors existing language in the Foreign Affairs Manual (“FAM”) which was updated over a year ago.
As we have written extensively in the past, CSPA protection involves technical requirements. The updated Policy Manual confirms that a child may only deduct the time an immigrant petition was pending from the child’s age to calculate the CSPA age. It also states that the CSPA age is calculated at the time of visa availability and that one must “seek to acquire” lawful permanent resident status to freeze the child’s age. Nothing new here. Although counter-intuitive, applicants with age out children should pray for long adjudication times, a Request for Evidence, and any other possible delay to extend the time the I-526 or I-140 petition was pending.
However, it does clarify when and how a child may “seek to acquire” permanent residence status. The three options remain consistent with the FAM guidance – 1) filing Form I-485, 2) submitting Form DS-260 with the Department of State (“DOS”), or 3) filing Form I-824 for derivative following to join cases.
Previous USCIS policy memoranda suggested that actions made prior to filing Form I-485, such as retaining an attorney, could be enough to lock in a child’s age. It appears this is no longer sufficient. Note that the Policy Manual specifically refers to applicants filing an adjustment of status, since foreign nationals who apply through consular processing are under the DOS jurisdiction.
Another major clarification is that the Date for Filing (“DFF”) chart has no bearing on CSPA protection. In practice, very few employment-based applicants were eligible to file Form I-485 based on the DFF chart, but for those that did, CSPA protection is calculated only once a visa becomes current according to the Final Action Date (“FAD”) chart – no exceptions. This was a long overdue clarification, as the DFF chart was first introduced almost two years ago.
Keep in mind that if the FAD “retrogresses” within one year of visa availability, the child is given another year to lock in his or her age once the FAD becomes current again. This raises an important note regarding proper terminology. Retrogression does not mean any category that has a FAD. Retrogression means to move backwards. If a FAD remains the same or moves forward very slowly, it does not retrogress. For example, there has only been one instance of retrogression in the China and Vietnam EB-5 categories – the first day a FAD was established. In this instance, a small retrogression for once every 11 months could in fact save many children from aging out because it provides a longer time period to seek to acquire, provided the CSPA age is still under 21 when the FAD eventually becomes current.
Proper planning is vital for families with teenage children to ensure they are protected under CSPA. On multiple occasions, our 24-year old clients who are derivative applicants have obtained their immigrant visas thanks to an immigration strategy enacted year earlier. In other approved cases, a minor child has been able to apply as the principal investor and thus avoid age out issues, but when filing for minors, there are other important considerations.
If you have any questions about filing an EB-5 green card application or how the Child Status Protection Act will impact your case, please contact an attorney at Wolfsdorf Rosenthal LLP.