WASHINGTON—U.S. Citizenship and Immigration Services has provided updated guidance in the USCIS Policy Manual regarding the determination of when an immigrant visa number "becomes available" for the purpose of calculating a noncitizen’s age in specific situations under the Child Status Protection Act (CSPA).
To acquire lawful permanent resident status in the United States based on a parent’s approved petition for a family-sponsored or employment-based visa, a child typically must be under the age of 21. If a child turns 21 during the immigration process, they may "age out," rendering them ineligible to immigrate with the parent based on the parent’s petition.
The Child Status Protection Act (CSPA) was enacted by Congress to safeguard certain noncitizen children from losing eligibility for lawful permanent resident status due to aging out. This is achieved by providing a method to calculate the child’s age, considering when an immigrant visa number "becomes available." The Department of State's Visa Bulletin is used to determine visa number availability and includes two charts: the Dates for Filing chart and the Final Action Date chart. The previous CSPA guidance from USCIS considered a visa available for CSPA age calculation based solely on the Final Action Date chart, even if a noncitizen could apply for adjustment of status using the earlier date in the "Dates for Filing" chart.
This USCIS policy change is effective immediately and applies to pending applications. Consequently, some noncitizens with pending applications may now have a CSPA age under 21 based on this modification. For instance, between October and December of 2020, certain noncitizens were allowed to file adjustment of status applications using the Dates for Filing chart. However, the Final Action Date chart did not advance sufficiently for their applications to be approved. These noncitizens filed their applications without certainty about the potential benefits from CSPA.
Under the new guidance, USCIS will use the Dates for Filing chart to calculate the ages of these noncitizens for CSPA purposes, offering more certainty about their eligibility for adjusting status. If these noncitizens are eligible and have filed for adjustment of status, they can also apply for employment and travel authorization based on their pending adjustment of status application, without losing previously issued employment or travel authorization.
Noncitizens can file a motion to reopen their previously denied adjustment of status application with USCIS using Form I-290B, Notice of Appeal or Motion. Generally, motions to reopen must be filed within 30 days of the decision. USCIS may, at its discretion, excuse the untimely filing of the motion if the noncitizen demonstrates that the delay was reasonable and beyond their control for motions filed more than 30 days after the denial.
It's important to note that this Policy Manual update will not prevent all children from aging out before an immigrant visa is available, nor will it prevent children from losing nonimmigrant status derived from their parents upon reaching the actual age of 21. USCIS continues to explore various options available under the law to assist this population, including an anticipated notice of proposed rulemaking on improving regulations governing adjustment of status to lawful permanent residence and related immigration benefits in the Department of Homeland Security regulatory agenda.
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