Child Status Protection – Important New Development

On February 14, 2023 United States (US) Citizenship and Immigration Services (USCIS) announced an important change regarding when an immigrant visa "becomes available" for the purpose of calculating the Child Status Protection Act (CSPA) age for noncitizens seeking lawful permanent resident status in a preference category. The change was effective with immediate effect and applies to all adjustment of status applications adjudicated on or after Feb. 14, 2023. Previously denied applicants who would be eligible under the new guidance may be able to have their decisions reopened and reconsidered.

Background:

CSPA is complex and its implementation and interpretation has been subject to much litigation. If your immigration eligibility is impacted by CSPA you should seek competent legal advice to see how the change may impact your individual situation. The following is general information but should not be relied upon as legal advice.
The Immigration and Nationality Act (INA) defines a child as a person who is both unmarried and under 21 years old. If someone applies for lawful permanent resident (LPR) status as a child but turns 21 before being approved for LPR status (also known as getting a Green Card), that person can no longer be considered a child for immigration purposes. This situation is commonly referred to as "aging out" and often means that these applicants would have to file a new petition or application, wait even longer to get a Green Card, or may no longer be eligible for a Green Card.
Congress recognized that many children were aging out due to large USCIS processing backlogs, so it enacted the Child Status Protection Act (CSPA) (effective August 6, 2002) to protect certain children from aging out.
CSPA did not change the definition of a child. Instead, CSPA provided a method for calculating a person's age to see if they meet the definition of a child for immigration purposes. The calculated age is the child's "CSPA age." This allowed some people to remain classified as children beyond their 21st birthday. However, CSPA did not change the requirement that the person must be unmarried in order to remain eligible for classification as a child.
Applicants under a family preference (including VAWA self-petition), employment-based preference, or the diversity visa program, could calculate their CSPA age by subtracting the number of days the petition was pending (pending time) from the actual age on the date an immigrant visa becomes available to them (age at time of visa availability).
The date the visa is considered available is the later of these 2 dates:
The date the petition was approved; or The first day of the month when the DOS Monthly Visa Bulletin shows that a visa is available for that applicant.
Prior to October 2015, the CSPA age calculation was straightforward because the Department of State's monthly Visa Bulletin only contained a single chart listing the immigrant visa availability for each country and immigrant visa preference category.
In October of 2015, however, the Department of State began publishing two charts in its monthly Visa Bulletin: 1) a "Dates For Filing" chart (Filing Dates Chart) and 2) a "Final Action Dates" chart ("Final Action Dates Chart"). Since 2015, USCIS has designated one of the two charts, either the Filing Dates Chart or the Final Action Date chart, for applicants to use in determining when to file their I-485 adjustment applications. The Filing Dates Chart often allowed an applicant to apply for permanent residence earlier than if they had to wait for the Final Action Chart dates to move past their Priority Dates.
Until now, USCIS has issued and followed guidance that only the Final Action Dates Chart could be used to determine when a visa becomes available for CSPA calculations. This led to situations where applicants who were allowed to file Adjustment of Status applications based on the Filing Dates Chart, had their applications denied because they aged out while waiting for the Final Action Dates to reach their priority date.

The Change:

Under the new guidance, USCIS now considers an immigrant visa to have "become available" for the CSPA age calculation at the same time USCIS considers a visa immediately available for accepting and processing an adjustment application for permanent residence (I-485). Often, this means looking at the Filing Dates Chart and not the Final Action Dates Chart.

General:

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 for accepting and processing a potential adjustment of status application. This requirement does not apply to refugee derivatives, asylee derivatives, and IRs. There are specific rules for determining whether an applicant has met the "1 year sought to acquire requirement." The USCIS guidance also confirms that adjustment applicants who fail to fulfill the sought to acquire requirement within 1 year of visa availability may still be able to benefit from CSPA if they can establish that their failure to meet the requirement was the result of extraordinary circumstances.
As is clear, application of CSPA to individual situations is complex and can lead to different results based on the slightest changes to individual circumstances. There is no substitute for advice from an attorney experienced in immigration law.