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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Friday, August 25, 2023

Aging-Out Children Given Additional Time to Obtain CSPA Benefits


USCIS recently implemented another policy change to accord additional time for aging-out children to submit their I-485 adjustment of application based on the Child Status Protection Act (CSPA).

CSPA or the "Child Status Protection Act" was a law passed by Congress in 2002 to alleviate the negative impact of long waiting times for U.S. immigrant visas.  If a child has reached the age of 21 when visa numbers become available for her immigrant visa category, she will normally not be allowed to immigrate as a “child”.  But if this person's CSPA age is under 21, then she may still be eligible to immigrate.  CSPA "freezes" the age of a child while his or her immigrant petition was pending for processing, thereby reducing her legal age for immigration purposes.  Hence, an otherwise over-aged child may be able to immigrate based on her CSPA age.

In order to benefit from CSPA, immigrant children must do something to acquire their immigrant status within one year after visa numbers become available for their particular visa category.   If they are in the United States, they can fulfil this "sought to acquire" requirement by submitting their I-485 application for adjustment of status within one year.  

The question arises as to when this one-year period starts.  Most immigrants know that visa numbers are controlled by the monthly Visa Bulletin published by the U.S. Department of State.  However, since there are two sets of dates in the Visa Bulletin, i.e., Final Action Dates and Filing Dates, there was confusion as to which set of dates should be used to determine when visa numbers are available for a particular case.

Remember the policy announced by USCIS in February of this year regarding the use of Filing Dates to calculate CSPA age?   The February policy change confirms that immigrants may use the Filing Dates to determine if visa numbers are available or current for their particular visa petition. Because of this change, some immigrants might have missed the one-year deadline to submit their I-485 applications.  As such, USCIS made another change in their Policy Manual to confirm that such a failure can be excused, by designating the February policy change as an “extraordinary circumstance” under the law.  As a result, applicants now have additional time to submit their adjustment applications based on CSPA.

Although this additional policy change issued by USCIS applies only to applicants filing for I-485 adjustment in the U.S., the rationale should also be applied to overseas petitions.  Overseas immigrants generally "seek to acquire" their immigrant status through the National Visa Center (NVC) processing. It involves submission of an immigrant visa petition, civil documents such as birth and marriage certificates, payment of fees, submission of Affidavits of Support, etc.  Applicants whose cases were rejected on account of this one-year "sought to acquire" requirement should request for a review based on this new USCIS policy.  

As a reminder, most immigration petitions are time-sensitive.  Readers are reminded to submit their immigration applications and petitions as soon as possible to avoid denial or loss of eligibility.

(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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