On February 14, 2023, USCIS issued a policy guidance in the USCIS policy manual to update when an immigrant visa “becomes available” for the purpose of calculating the Child Status Protection Act (CSPA) age in certain situations.
The CSPA protects certain beneficiaries from losing eligibility for immigrant visas and adjustment of status due to their aging during the immigration process, which can lead to them no longer qualifying as a child for immigration purposes.
For noncitizens seeking lawful permanent resident status in a preference category, the CSPA provides a method to calculate a noncitizen's age based on the date an immigrant visa becomes available, but only if the noncitizen seeks to acquire lawful permanent resident status within 1 year of such immigrant visa availability. Neither the statute nor regulations define when a visa becomes available for purposes of the CSPA age calculation, and there are no precedent federal court decisions nor published administrative decisions on the issue.
Under previous CSPA guidance, published in May 2018, USCIS only considered a visa available for CSPA age calculation based on the Final Action Dates chart.
After the publication of the May 2018 guidance, the same applicant for adjustment of status could have a visa “immediately available” for purposes of filing the application but not have a visa “become available” for purposes of CSPA calculation. Applicants who filed based on the Dates for Filing chart would have to pay the fee and file the application for adjustment of status without knowing whether the CSPA would benefit them.
To address this issue, USCIS has updated its policies and now 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. This update resolves any apparent contradiction between different dates in the visa bulletin and the statutory text regarding when a visa is “available.”
- When USCIS determines there are more immigrant visas available for a fiscal year than there are known applicants for such visas, and USCIS announces that prospective applicants may use the Dates for Filing chart when filing an adjustment of status applications, then USCIS also uses the Dates for Filing chart when calculating the applicant's CSPA age.
- When USCIS announces that a prospective applicant must use the Final Action Dates chart when filing the adjustment of status application, then USCIS uses the Final Action Dates chart when calculating the applicant's CSPA age.
This guidance, contained in Volume 7 of the Policy Manual, is effective immediately and applies to the adjustment of status applications adjudicated by USCIS on or after February 14, 2023. The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance on the topic. Also, the 1-year period during which a noncitizen must seek to acquire lawful permanent residence for CSPA starts when a visa becomes available for accepting and processing a potential adjustment of status application. However, USCIS may, at its discretion, take into account certain extraordinary circumstances for failure to seek to acquire lawful permanent residence within 1 year of visa availability.
In addition, noncitizens may file a motion to reopen their previously denied adjustment of status application with USCIS using a Notice of Appeal or Motion (Form I-290B). Noncitizens must generally file motions to reopen within 30 days of the decision. For a motion filed more than 30 days after the denial, if the noncitizen demonstrates that the delay was reasonable and was beyond their control, USCIS may, at its discretion, excuse the untimely filing of the motion.
We regularly update our blog section to acquaint the community with to latest changes in Immigration policies. Please note the information in this blog is for informational purposes only and is not intended to be nor should it be construed as legal advice. We can promptly and efficiently represent clients located anywhere in the US or abroad on US Immigration Policies. If you seek further clarification, don't hesitate to contact SanSha Law Office at [email protected] or call us at 469-777-6161.
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