A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Wednesday, February 22, 2023

New CSPA Policy Should Benefit Many Children


On 2/14/2023, USCIS revised its policy regarding Child Status Protection Act (CSPA) calculations.  USCIS now also accepts the "Dates for Filing" in the monthly visa bulletin published by the State Department in calculating the ages of aging-out green card applicants. Additionally, the Filing Dates can also be used as the basis for determining whether applicants "seek to acquire" resident status within one year of visa availability.

CSPA is a law that helps aging-out children to remain eligible for permanent resident status based on their parents' petitions.  It freezes the age of an applicant when the visa numbers are current for the applicant's visa category.  Previously, USCIS only allowed the use of the "Dates for Final Action" to determine whether visa numbers are available.  Since the Filing Dates are generally more favorable than the Final Action Dates, allowing the use of the Filing Dates should help more applicants preserve their eligibility. 

The change in policy should benefit many children but particularly children of Indian descent, as the gaps between the Filing Dates and Final Action Dates are particularly pronounced for India's employment-based visa categories. For example, many Indian applicants filed their I-485 applications in October, November, and December 2020 based on the Filing Date Charts in those months.

Another requirement for CSPA is that an applicant must take actions to apply for legal status within one year of visa availability.  Under the new policy, the one-year period starts on the 1st of the month in which USCIS starts to accept and process I-485 applications. USCIS may excuse violations of the one-year rule if there exists extraordinary circumstances.

The new policy is effective immediately and applies to all pending I-485 applications as of 02/14/2023.  Applicants whose I-485 applications were denied for these reasons can file an I-290B motion to reopen and reconsider within 30 days.  USCIS may use its discretionary authority to excuse late motions as well.  Although this is a DHS/USCIS policy change, it is expected that the State Department will also adopt this policy in adjudicating overseas immigrant visa applications. 

8/24/2023 Updates

USCIS issued another update on their Policy Manual on this issue:

  • Explains that we consider the Feb. 14 policy change to be an extraordinary circumstance that may excuse an applicant’s failure to meet the sought to acquire requirement;
  • Clarifies that we may excuse an applicant’s failure to meet the sought to acquire requirement if they did not apply to adjust their status because they could not calculate their CSPA age under the prior policy or their CSPA age would have been calculated as over 21, but they are now eligible for CSPA age-out protection under the new policy; and
  • Clarifies that we consider applicants to have met the sought to acquire requirement if their application to adjust their status was pending on Feb. 14 and they applied to adjust their status within 1 year of a visa becoming available based on the Final Action Dates chart under the policy guidance that was in effect when they applied.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

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