Recently, USCIS updated its policy guidance regarding the Child Status Protection Act (“CSPA”). The revised USCIS Policy Manual changes the way USCIS determines when an immigrant visa “becomes available” for purposes of calculating the revised CSPA age for those seeking lawful permanent residence status in an employment or family-based preference category. While the previous policy indicated a visa was “available” when the priority date becomes current under the Final Action chart of the visa bulletin, USCIS will now consider the Dates for Filing chart instead. This is great news since older children often “age out” of a green card through their parents due to lengthy processing times and persistent visa backlogs.

While the impact for those in the U.S. adjusting status through an I-485 application was immediately clear when this policy was announced, this update is also a tremendous benefit for those who are applying for an immigrant visa abroad at a U.S. embassy or consulate. In recent years, consular processing has experienced extraordinary delays due to Covid-19, related closures, and increased backlogs. As a result, those subject to this process may wait years for a visa. Because of the long, protracted nature of this process, these applicants are at an even higher risk of “aging out.” As such, they stand to benefit the most from this updated policy.

Applicability to Consular Processing

As confirmed in the USCIS Policy Manual, CSPA applies to “both noncitizens abroad who are applying for an immigrant visa through the Department of State (DOS) and noncitizens physically present in the United States who are applying for adjustment of status through USCIS.” While Chapter 7 of the Policy Manual primarily focuses on the impact of CSPA on adjustment applicants, USCIS emphasizes that the “same principles generally apply to noncitizens seeking an immigrant visa through DOS.”

Generally speaking, 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. The CSPA calculation “freezes” the child’s age at a certain point in the process, so that they do not lose eligibility based on lengthy processing times.

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 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

Each month, the DOS publishes a visa bulletin, which includes two charts: The Final Action Dates chart and the Dates for Filing chart. After the DOS publishes the visa bulletin, USCIS will announce which chart it is using that month, to determine who may file their adjustment of status applications.

Previously, “visa availability” was determined for purposes of CSPA calculation by using the Final Action Chart of the Visa Bulletin. Now, the Dates for Filing chart will be used instead, when applicable. This means that if USCIS announces it is using the Dates for Filing chart in any given month, then that is the chart that will apply for CSPA purposes.

In the consular processing context, the same basic principles will apply. Similar to USCIS, NVC typically uses the Dates for Filing chart to let immigrant visa applicants know that they should get ready to submit the relevant documentation for their interviews at the U.S. Consulates. If NVC uses the Dates for Filing chart to begin the consular process, the Dates for Filing chart will be used for CSPA purposes.

Meeting the “Sought to Acquire” Requirement

While the date you file an adjustment application or begin the consular process is not relevant to the CSPA calculation itself, to benefit from CSPA, the applicant must seek to acquire lawful permanent residence within 1 year of when the visa becomes available. As long as you meet the “sought to acquire” requirement within one year, the age will be locked in.

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 in the March 2023 Visa Bulletin. Sometime in March, the applicant receives an email from NVC to begin the consular process, so the applicant wants to know if he is eligible to apply 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 revised CSPA age is under 21. As such, he remains eligible for derivative green card status and can proceed with the consular process. His age will be frozen as of March 1, 2023, the first date of the month the Visa Bulletin listed the priority date was current under the Dates of Filing Chart, which NVC indicated it was using by sending the welcome email. As long as he takes action to meet the “sought to acquire” requirement within one year, his CSPA age remains frozen as of March 1.

Under the USCIS Policy Manual, any of the following actions will satisfy the “sought to acquire” requirement for those utilizing consular processing:

• Submitting a completed Immigrant Visa Electronic Application (Form DS-260), Part I to the DOS; or
• Paying the immigrant visa fee to DOS; or
• Paying the Affidavit of Support Under Section 213A of the INA (Form I-864) review fee to DOS (provided the applicant is listed on the Affidavit of Support); or
• Having a properly filed Application for Action on an Approved Application or Petition (Form I-824) filed on the applicant’s behalf.

While you have one year to complete any one of these actions to benefit from the revised CSPA, if the priority date retrogresses before action is taken, the CSPA age will not be locked in. As such, it is always in the applicant’s best interest to apply as soon as possible when a visa first becomes available.

Relief for Visa Refusals?

When USCIS announced the revised CSPA guidance, the agency expressly stated they will consider motions to reopen for I-485 applications denied based on the applicant “aging out.” However, for those subject to the consular process, there is no formal appeal process available. Nonetheless, since USCIS announced it will consider previously denied cases, there is a logical inference the consulates may also be willing to reconsider past refusals as well.

At the consulate stage, the Field Adjudicator’s Manual specifies: “There is no appeal process for visa refusals; however, applicants and their representatives of record may pose legal questions regarding pending or recently completed visa cases by email.” (FAM 103.4-1)

As such, if you received a visa refusal based on aging out, it may be possible to request reconsideration based on the updated policy guidance. ILBSG recommends working with an attorney to correspond with the Department of State regarding the possibility of having your visa refusal reconsidered.

Outside of asking the consulate to reconsider the refused visa, there is also the option to seek judicial review in federal court. However, it is important to exhaust all administrative remedies first, so the best course of action is to first work with the consulate to determine if reconsideration is possible.

Importantly, if your priority date only became current sometime within the last year and it remains current, you may also be able to simply reapply and still meet the 1 year sought to acquire requirement to retain the CSPA protections.

If you have questions about CSPA or its applicability to consular processing, please reach out to us today. We are here to help.