USCIS has recently updated their Policy Manual to clarify the rules under which a noncitizen’s age is calculated for the Child Status Protection Act (CSPA). It includes guidance on when an immigrant visa number is considered “available” in these situations.
Most minors who seek to obtain a lawful permanent resident status in the US due to the approval of their parent’s family-sponsored or employment-based visas should be below 21 years of age. If an individual is under 21 at the time of their parent’s petition for immigration and turns 21 before the said process is complete, they become ineligible to immigrate with their parent.
Congress passed the CSPA to protect a certain group of noncitizen children, who would otherwise become ineligible for a permanent resident visa due to their age, by providing a formula that takes into account when an immigrant visa number is made available. The Department of State’s Visa Bulletin determines when a visa number becomes available. The Visa Bulletin has two charts – the Dates for Filing chart and the Final Action Date chart. Previously, USCIS would base its CSPA age calculations solely on the Final Action Date Chart. This was regardless of whether a foreign individual could apply for status adjustment using the earlier date specified in the Dates for Filing chart.
USCIS has implemented the new policy change, taking effect immediately and affecting already pending applications; as a result, some non-citizens with a pending application might now fall under the CSPA age of 21 based on this alteration. Noncitizens between October and December of 2020 had the authority to submit their adjustment of status applications using the Dates for Filing chart from the Visa Bulletin. Unfortunately, the Final Action Date chart didn’t move forward enough for their applications to be granted. They paid the necessary fee for their status adjustment without understanding whether or not they were eligible for the CSPA benefits.
Adhering to this recent guidance, the USCIS will now use the Dates for Filing chart when calculating ages of noncitizens for CSPA purposes. This will enhance the certainty about whether these noncitizens are qualified to adjust their official status and increase convenience. If these noncitizens are eligible to adjust status because of the policy change and have filed for adjustment of status, Individuals who have already filed for permanent residency status can continue to apply for employment and travel authorization. Prior permission will remain in effect until their adjustment of status application is approved.
Noncitizens denied adjustment of status may file a motion to reopen the application with USCIS by filing Form I-290B, Notice of Appeal, or Motion. Those not native to a country must usually file for motions to be reopened within 30 days of any decision made. Even if a motion is filed more than 30 days after the denial, USCIS may allow for its acceptance if the noncitizen can prove that the delay in filing was due to factors beyond their control and was reasonable.
This Policy Manual update will not prevent all children from aging out before an immigrant visa is available to them, nor will it prevent children from losing nonimmigrant status derived from their parents upon reaching the actual age of 21. USCIS continues to explore all options available under the law to aid this population. For example, the Department of Homeland Security regulatory agenda includes an anticipated notice of proposed rulemaking on improving the regulations governing the adjustment of status to lawful permanent residence and related immigration benefits.
This article, under no circumstances, acts as legal advice; therefore, for any immigration questions, please contact your Attorney or the Ahluwalia Law Offices, P.C. (Team ALO).
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