USCIS recently updated its policy manual regarding the CSPA, to provide clarity on how it calculates a child’s age and the “sought to acquire requirement.”
The CSPA provides age-out protection for children who are affected by the delay in adjudicating applications. Because of the long processing times the CSPA can prevent a child aging out by adjusting his/her age.
Immediate relatives (IR)
An IR includes a US Citizen’s spouse, parents, and children under the age of 21.
The date the IR petition (Form I-130) is filed determines whether a person remains an IR child. Thus, the child’s age is frozen on the date the I-130 is filed. Therefore, if an I-130 is filed for a child and the child turns 21 when the I-130 is pending they will remain an IR under CSPA, provided they do not get married.
If the I-130 Petitioner dies the I-130 is automatically converted to an I-360. The widower’s child must be under the age of 21 at the time of the conversion, i.e. the Petitioner’s death, in order to be eligible for CSPA relief.
USCIS clarified its regulations to remind applicants that it is the I-130/I-360 filing date that is used to determine an applicant’s CSPA age and has nothing to do with the date that the I-485 is filed.
Family and Employment – Based Petitions
The CSPA applies differently in family or employment-based applications and the child’s age is not frozen based on the date of filing, as it is for Immediate Relatives.
In order to determine whether a child will age out, there is a formula that is used which takes into account how long a petition has been pending with USCIS. Furthermore, eligibility is also dependent on whether the child sought to acquire lawful permanent residence within 1 year of a visa becoming available. Although an applicant must file an I-485 or apply for an immigrant visa at the Consulate to take advantage of CSPA, the filing date of the I-485 is not relevant for calculating the CSPA age.
For Family and Employment – based petitions the following formula is used to determine a child’s age.
- Determine the child’s actual age on the date the visa became available as per the final action date chart, found on the DOS visa bulletin. (Please note that this step requires an approved I-130 or I-140. If the Final action date chart indicates that the priority dates are current, the date the visa became available is the date the I-130 or I-140 was approved. Otherwise, the first date the visa becomes available is the first day of the month of the DOS visa bulletin that indicates availability for the immigrant preference category).
- Subtract the number of days that the I-130, I-140 or was pending. This age will be the child’s adjusted age under the CSPA.
Only the Final Action date chart freezes a child’s age under CSPA
It is important to remember that it is the final action date chart which is used for the purposes of calculating a child’s age and not the filing date chart. The filing date chart does not freeze a child’s age under CSPA.
So, for example, a child filing under the October or November 2020 visa bulletin would not have their age frozen.
Below is an example of how CSPA would work in practice:
Rahul’s employer files the I-140 petition in regular processing. At the time of filing, his son, Aditya, is 20 years and 9 months old. The I-140 takes 9 months to be approved meaning that Aditya’s actual age is 21 years and 6 months. Assuming that once the case is approved Rahul‘s priority date is current, meaning a visa is available, under the CSPA the time taken by USCIS to adjudicate the case can be deducted from Aditya’s actual age. Therefore, Aditya CSPA age is 20 years and 9 months old as the 9- month processing time is deducted from his actual age. His age is frozen at 20 years and 9 months because a visa is immediately available. Due to the “sought to acquire” requirement under CSPA Aditya has 1 year to file for adjustment of status or apply for an immigrant visa at the Consulate.
If we take the above example, but at the time of the approval there is no visa available, in other words Rahul’s priority date is not current then we could end up with a different result. If it takes another year until Rahul’s priority date becomes current, then Aditya’s actual age would be 22 years and 6 months when a visa becomes available. Deducting the 9 months it took for USCIS to adjudicate the case Aditya would be 21 years and 9 months. Unfortunately, this means he has aged out and is not eligible to apply for adjustment of status or an immigrant visa.
Sought to acquire requirement
The sought to acquire requirement can be satisfied by an applicant filing any of the following within 1 year of a visa becoming available:
- Filing an I-485 with USCIS;
- Submitting a completed DS-260 to DOS;
- Paying the immigrant fee to DOS;
- Paying the affidavit of support fee to DOS; or
- Filing I-824 with USCIS.
Failure to fulfil the sought to acquire requirement within 1 year of the visa becoming available may be excused of an applicant can demonstrate extraordinary circumstances.
Conclusion
CSPA calculations can be tricky and usually require the assistance of an experienced Immigration Attorney. It is important to file for adjustment of status or an immigrant visa as soon as possible after a visa becomes available to avoid any aging out issues. Even though a child’s age is frozen once the underlying petition is approved and a visa is available as per the final action date chart, it can become unfrozen if there is retrogression in dates prior to the I-485 being filed. Once the visa becomes available again an applicant’s age is based on the new visa availability date.
If you have any questions about the CSPA please contact PLG Attorney Chris Prescott at cprescott@patellegal.com.