The problem of children aging out has always been a complex issue, with many filing applications for a green card only to lose eligibility at the last minute.
On February 14, 2023, USCIS updated its guidance on the Child Status Protection Act (CSPA), specifically with regards to when an immigrant visa becomes available. Children’s eligibility for a green card based on their parent’s petition, requires a child’s age to be under 21. Turning 21 causes a child to age out and miss out on the opportunity to obtain a green card.
CSPA was introduced to protect children from aging out and provided a method to calculate a child’s age that was more advantageous than their actual age. For family and employment-based petitions this calculation allowed applicants to deduct the number of days an I-130 or I-140 was pending and became the adjusted age under the CSPA. If certain criteria were met the child’s age would freeze, preventing the child from aging out. However, to determine the child’s actual age USCIS considers when an immigrant visa number becomes available. Prior to February 14, 2023, USCIS only considered an immigrant visa number to be available under the “Final Action Date”. The Department of State issues a visa bulletin each month which contains two charts. The “Final Action Date” Chart, which determines when a green card can be issued and the “Dates for Filing” chart which provides for the early filing of green card applications.
The latter chart allows individuals to file applications early prior to when a green card is available and has the added benefit of allowing individuals to file for an employment authorization and travel document. While the ability to file early holds tremendous value, it also creates a lot of uncertainty for children, who at the time of filing do not know if they will qualify for a green card. This is because USCIS previously determined a green card was available based on the “Final Action Date” chart, meaning an individual could file based on the “Dates for Filing” chart, but ultimately age out.
The new guidance from USCIS now considers a green card to be available under the “Dates for Filing” chart. This policy change is effective immediately and applies to pending applications. USCIS has also stated that those whose applications were previously denied under the old guidance, can file a Motion to re-open if they are eligible under the new guidance.
This change in policy stands to benefit more children, however the Department of State (DOS) has not yet updated its Foreign Affairs Manual. For this new guidance to be applied consistently DOS will need to follow suit. Unfortunately, they have a habit of acting in a manner that is entirely inconsistent with USCIS. Therefore, only time will tell.
Below is an example of how CSPA was previously calculated and how it is now being calculated, as per the recent update:
Client Situation:
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 (under the final action date chart), 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.
Prior CSPA Application
If we take the above example, but at the time of the approval there is no visa available as per the “Final Action Date Chart,” in other words Rahul’s priority date is not current, then under the prior guidance we would 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 an adjustment of status or an immigrant visa.
New CSPA Application
Under the new guidance, Rahul would not age out as his age would freeze upon filing the I-485 under the “Dates for Filing” chart because this is when a visa is available.
Clearly, the new rule is advantageous, but it will not completely stop children from aging out.
If you have questions regarding the above please do not hesitate to contact PLG Partner, Chris Prescott at cprecsott@patellegal.com.