USCIS issued updated guidance regarding when an immigrant visa number “becomes available” for purpose of calculating the noncitizen’s age under the Child Status Protection Act (CSPA). Previously, USCIS considered a child’s age “frozen” if a visa number was available under the Final Action Date Chart of the Visa Bulletin at the time the I-485 application was filed. Now, the USCIS Policy Manual has been updated to reflect that USCIS will instead use the Dates for Filing Chart for calculating a child’s age under CSPA. In other words, the child’s age will be “frozen” when the I-485 application is filed based on the Date of Filing Chart, even if a visa number is not yet available under the Final Action Chart.

This provides desperately needed relief for those at risk of aging out due to lengthy processing times and persistent visa backlogs.

As background, for a child to obtain a green card in the U.S. based on a parent’s approved immigrant visa, the child must be under 21 years of age. If the child turns 21 at some point during this process, the child is considered to have “aged out” and, therefore, is no longer eligible as a derivative applicant.

The Child Status Protection Act (CSPA) was enacted by Congress to protect certain children in this situation from losing eligibility for derivative lawful permanent residence, in recognition that many children were “aging out” due to backlogs and lengthy processing times. CSPA provides a method for calculating a child’s age to see if they meet the definition of a child for immigration purposes and, therefore, remain eligible for derivative permanent residence.

Under CSPA, a child’s age is calculated by looking at the actual age when the priority date for the green card became current or the date when the underlying immigrant petition (I-130, I-140, I-360, I-536, or diversity visa) was approved, if a visa is immediately available at the time of approval. The number of days the immigrant petition was pending is then subtracted from that age, to determine the child’s “CSPA age.” If an individual’s CSPA age is under 21, the individual meets the definition of a “child” for immigration purposes and, therefore, remains eligible for the derivative green card. In simple terms, the calculation is:

Age at Time of Visa Availability – Pending Time = CSPA Age

Previously, USCIS determined “visa availability” for purposes of this calculation using the Final Action Chart of the Visa Bulletin. Now, USCIS will instead consider the Dates of Filing Chart for CSPA age calculations. This is great news since the Dates of Filing Chart typically includes much earlier dates.

For example, let’s say an applicant is 21 years and 4 months old at the time the priority date for his parent’s I-140 petition becomes current under the Dates of Filing Chart. That month, USCIS announces it will accept I-485 applications based on the Dates of Filing Chart, so the applicant wants to know if he is eligible to file his green card application even though he’s already turned 21. If his parent’s I-140 petition was pending for 6 months, the CSPA calculation would be as follows:

21 Years and 4 months – 6 months = 20 Years and 10 months

In this scenario, the applicant’s CSPA age is under 21. As such, he remains eligible for derivative green card status and can file the I-485 application as a “child” for immigration purposes. When he files his I-485 application, it will effectively “freeze” his age under CSPA.

As explained in the USCIS Policy Manual[1] update, “the date USCIS considers a visa available for accepting and processing an adjustment of status application according to the USCIS website and the Visa Bulletin is also the date USCIS considers a visa available for CSPA purposes if the petition is already approved.” This means that if an individual’s priority date is “current” under the Date of Filing Chart and USCIS announces it will use the Date of Filing Chart that month (like in the example above), the visa will be considered available on the first date of that month for purposes of CSPA calculation.

This policy change is effective immediately and applies to all pending applications. This means that some noncitizens with pending applications based on the Dates of Filing Chart, who may have already “aged out” if their priority date never became current under the Final Action Chart, may now have a CSPA age under 21. If so, they remain eligible for a derivative green card.

As many of our readers may recall, between October – December 2020, USCIS allowed a high number of employment-based green card applicants from India and China to submit I-485 applications based on the Dates of Filing Chart of the Visa Bulletin during those months. Since that time, the Final Action Date chart has not advanced far enough for all those applications to be approved. Many of those who filed under the Dates of Filing Chart have since aged out. Now, since USCIS will calculate the CSPA age based on the Dates of Filing Chart, those affected will again become eligible for derivative green card status.

If an individual previously received an I-485 application denial based on having “aged out,” USCIS has announced it will accept a Motion to Reopen (MTR) using Form I-290B. While MTRs must typically be filed within 30 days of the decision, USCIS can accept an untimely filing if the delay was reasonable and beyond the noncitizen’s control. Here, the policy change justifies the delay, so USCIS will accept MTRs filed on this basis.

While USCIS’ announcement did not explicitly discuss consular processing, the same policy will benefit these individuals. The USCIS Policy Manual states that “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.” USCIS explains that the “sought to acquire” requirement may be satisfied through properly filing an I-485, submitting a completed DS-260, or paying the immigrant fee to the Department of State. As such, those who begin the consulate process based on an immigrant visa becoming available will likewise benefit from CSPA.

If you have questions about this Child Status Protection Act policy change or believe your application or eligibility may be affected as a result, please reach out to us today. We are here to guide you.

[1] https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-7