On February 14, 2023 United States (US) Citizenship and Immigration Services (USCIS) announced an important change regarding when an immigrant visa "becomes available" for the purpose of calculating the Child Status Protection Act (CSPA) age for noncitizens seeking lawful permanent resident status in a preference category. The change was effective with immediate effect and applies to all adjustment of status applications adjudicated on or after Feb. 14, 2023. Previously denied applicants who would be eligible under the new guidance may be able to have their decisions reopened and reconsidered.
Background:
CSPA is complex and its implementation and interpretation has
been subject to much litigation. If your immigration eligibility is
impacted by CSPA you should seek competent legal advice to see how
the change may impact your individual situation. The following is
general information but should not be relied upon as legal
advice.
The Immigration and Nationality Act (INA) defines a child as a
person who is both unmarried and under 21 years old. If someone
applies for lawful permanent resident (LPR) status as a child but
turns 21 before being approved for LPR status (also known as
getting a Green Card), that person can no longer be considered a
child for immigration purposes. This situation is commonly referred
to as "aging out" and often means that these applicants
would have to file a new petition or application, wait even longer
to get a Green Card, or may no longer be eligible for a Green
Card.
Congress recognized that many children were aging out due to large
USCIS processing backlogs, so it enacted the Child Status
Protection Act (CSPA) (effective August 6, 2002) to protect certain
children from aging out.
CSPA did not change the definition of a child. Instead, CSPA
provided a method for calculating a person's age to see if they
meet the definition of a child for immigration purposes. The
calculated age is the child's "CSPA age." This
allowed some people to remain classified as children beyond their
21st birthday. However, CSPA did not change the requirement that
the person must be unmarried in order to remain eligible for
classification as a child.
Applicants under a family preference (including VAWA
self-petition), employment-based preference, or the diversity visa
program, could calculate their CSPA age by subtracting the number
of days the petition was pending (pending time) from the actual age
on the date an immigrant visa becomes available to them (age at
time of visa availability).
The date the visa is considered available is the later of these 2
dates:
The date the petition was approved; or The first day of the month
when the DOS Monthly Visa Bulletin shows that a visa is available
for that applicant.
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" chart (Filing Dates Chart) and 2) a
"Final Action Dates" chart ("Final Action Dates
Chart"). Since 2015, USCIS has designated one of the two
charts, either the Filing Dates Chart or the Final Action Date
chart, for applicants to use in determining when to file their
I-485 adjustment applications. The Filing Dates Chart often allowed
an applicant to apply for permanent residence earlier than if they
had to wait for the Final Action Chart dates to move past their
Priority Dates.
Until now, USCIS has issued and followed guidance that only the
Final Action Dates Chart could be used to determine when a visa
becomes available for CSPA calculations. This led to situations
where applicants who were allowed to file Adjustment of Status
applications based on the Filing Dates Chart, had their
applications denied because they aged out while waiting for the
Final Action Dates to reach their priority date.
The Change:
Under the new guidance, USCIS now 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). Often, this means looking at the Filing Dates Chart and not the Final Action Dates Chart.
General:
In order for family-sponsored and employment-based preference
and DV adjustment applicants to benefit from the CSPA age
calculation, they must seek to acquire lawful permanent residence
within 1 year of when a visa becomes available for accepting and
processing a potential adjustment of status application. This
requirement does not apply to refugee derivatives, asylee
derivatives, and IRs. There are specific rules for determining
whether an applicant has met the "1 year sought to acquire
requirement." The USCIS guidance also confirms that adjustment
applicants who fail to fulfill the sought to acquire requirement
within 1 year of visa availability may still be able to benefit
from CSPA if they can establish that their failure to meet the
requirement was the result of extraordinary circumstances.
As is clear, application of CSPA to individual situations is
complex and can lead to different results based on the slightest
changes to individual circumstances. There is no substitute for
advice from an attorney experienced in immigration law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.