For example, the law allows unmarried children of U.S. citizens to remain immediate relatives if they are under 21 when the I-130 petition is filed. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to update when an immigrant visa becomes available for the purpose of calculating Child Status Protection Act (CSPA) age in certain situations. The prospective applicant decides not to apply for adjustment of status between October 1, 2020, and the end of January 2021. [^ 46] If a derivative child has a pending adjustment application and USCIS approves the principal applicants request to transfer the underlying basis of their adjustment application to a different immigrant category based on another approved petition, then the date that the transfer request is received by USCIS is the date used to determine whether the derivative child met the sought to acquire requirement. Note: If an applicant has multiple approved petitions, calculate the applicants CSPA age using the petition that forms the underlying basis for the adjustment of status application. Officers may use the USCIS webpage to track movement of dates over time but should confirm consequential dates in the relevant monthly bulletin and chart. CSPA may still apply for a preference applicant who did not have an adjustment application pending on August 6, 2002, and who did not timely seek to acquire. The formula for determining the length of time the petition was pending is as follows: Approval Date - Filing Date = Pending Time. On June 1, 2021, the visa becomes available again to the prospective applicant. For derivative asylees, an adjustment applicants CSPA age is his or her age on the date the principal applicants Form I-589 is filed. L. 106-386 (PDF) (October 28, 2000). I suggest you gather up the relevant documents (particularly the I-130 receipt and I-130 approval notice) and get a lawyer to send a letter to the NVC that demonstrates your CSPA calculation, asserts your eligibility to stay in F2A and urges them to forward your case to the consulate for final processing. A lock ( A locked padlock ) or https:// means you've safely connected to the .gov website. You become an immediate relative and will not age out. CSPA does not change the definition of a child. [^ 2] The situation in which noncitizens can no longer be classified as children for immigrant visa purposes due to turning 21 is commonly referred to as aging out.. The date of visa availability is the date of petition approval or the first day of the month of the DOS Visa Bulletin that indicates availability for that immigrant preference category and priority date according to the chart USCIS designated that month for accepting and processing the adjustment of status application, whichever is later. It helps lock in the age and preserve the "child" status of both immediate relatives and those in the preference categories. If you are a K-4 nonimmigrant, you are eligible for CSPA because you will apply for a Green Card as an immediate relative based on a Form I-130 filed by your U.S. citizen stepparent. The CSPA does not solve the problem of "age outs" for all children of LPRs and other derivative beneficiaries. If the visa does not remain continuously available for accepting and processing the application, and becomes unavailable again, the period starts anew once the visa becomes available again. A visa subsequently becomes available again on October 1, 2021, based on the Dates for Filing chart, which USCIS has designated for use in that month. [19], CSPA applies differently to family-sponsored and employment-based preference and DV adjustment applicants than it does to refugee, asylee, and IR adjustment applicants. An adjustment applicant may satisfy the sought to acquire requirement by any one of the following: Properly filing an Application to Register Permanent Residence or Adjust Status (Form I-485);[41], Submitting a completed Immigrant Visa Electronic Application (Form DS-260), Part I to the DOS;[42], Paying the immigrant visa fee to DOS;[43], Paying the Affidavit of Support Under Section 213A of the INA (Form I-864) review fee to DOS (provided the applicant is listed on the Affidavit of Support);[44] or, Having a properly filed Application for Action on an Approved Application or Petition (Form I-824) filed on the applicants behalf. See Chapter 9, Death of Petitioner or Principal Beneficiary [7 USCIS-PM A.9] for more information. The applicants CSPA age is calculated as follows: 21 years and 4 months - 6 months = 20 years and 10 months. [32], Determining When an Applicant May File an Adjustment Application and When a Visa is Available for the CSPA Age Calculation. Therefore, the applicants CSPA age is under 21. It appears that NVC generally does not issue fee bills to dependent children who have . B BigJoe5 Registered Users (C) Jul 26, 2011 However, the derivative refugee may overcome this by providing evidence establishing the parent-child relationship, including evidence of the childs age, and a reasonable explanation as to why the derivative was not included on the principals Form I-590. VAWA self-petitioners and derivatives who age out before adjusting status are considered self-petitioners for preference status, and derivatives retain the priority date of their parents Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) VAWA self-petition. See Section G, Sought to Acquire Requirement [7 USCIS-PM A.7(G)]. Hello there, Congratulations, you and your brother both qualify for CSPA, what you should do is when you send supporting documents for your parents to the NVC, send a letter to the NVC with your and your brother's name, date of birth and ask NVC to review the file since you may qualify for CSPA. [^ 7] See Section H, Summary of Child Status Protection Act Applicability [7 USCIS-PM A.7(H)] for a condensed guide to basic provisions for each category of CSPA-eligible immigrants. CSPA age is calculated by subtracting the number of days the Form I-130 (or Form I-360 for VAWA self-petitioners and derivatives) was pending from the applicants age on the date an immigrant visa becomes available to the applicant. As a K-2 nonimmigrant (child of a K-1 nonimmigrant who is the fianc(e) of a U.S. citizen), you typically get a Green Card based on your admission into the U.S. with a K-2 visa and your K-1 parents marriage to the U.S. citizen petitioner within 90 days of being admitted to the U.S. As long as you were under 21 when you were admitted to the United States as a K-2 nonimmigrant, you will not age out of eligibility for a Green Card. INA 201(f) - Rules for determining whether certain aliens are immediate relatives, INA 203(h) - Rules for determining whether certain aliens are children, INA 207(c)(2)(B) - Admission by Attorney General of refugees; criteria; admission status of spouse or child; applicability of other statutory requirements; termination of refugee status of alien, spouse, or child, INA 208(b)(3)(B) - Continued classification of certain aliens as children, INA 209(a)(1) - Inspection and examination by Department of Homeland Security, INA 209, 8 CFR 209 - Adjustment of status of refugees and asylees, Pub. L. 107-208 (PDF) - Child Status Protection Act, G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, I-140,Immigrant Petition for Alien Worker, I-360, Petition for Amerasian, Widow(er), or Special Immigrant, I-485, Application to Register Permanent Residence or Adjust Status, I-526, Immigrant Petition by Standalone Investor, I-589, Application for Asylum or Withholding of Removal, How to Use the USCIS Policy Manual Website (PDF, 2.99 MB). For purposes of adjustment of status of a derivative refugee, CSPA protection is not needed because a derivative refugee does not need to remain the child of the principal refugee in order to adjust status under INA 209. The visa remains available to the prospective applicant for accepting and processing their application according to the Dates for Filing chart (designated by USCIS) for 4 months, that is, through the end of January 2021. Since your age freezes on the date your stepparent files the Form I-130, you may benefit from the CSPA as long as your stepparent files the Form I-130 before your 21st birthday. Quote Tweet #9 01-15-2003, 12:35 AM Hello Everybody, Regarding "Child Status protection act" (CSPA) On "Retention of priorty of date" in F4- F3 categories. [49], Impact of Visa Unavailability on the 1-Year Sought to Acquire Requirement. In September 2015, DOS and USCIS announced a revision to the Visa Bulletin, which created two charts of dates. Furthermore, the fact of being or having been a child is common to all applicants seeking protection under the CSPA and does not constitute extraordinary circumstances. If the applicant does not seek to acquire within 1 year of visa availability although the visa was available for a continuous 1-year period, the applicant cannot benefit from the age-out protections of the CSPA. Age at Time of Visa Availability - Pending Time = CSPA Age. Family-Sponsored Preference Principals and Derivatives (including VAWA)[54]. The History tab was added to the USCIS Policy Manual on June 11, 2021, and provides historical versions on and after that date. To find remaining AFM content, see the crosswalk (PDF, 350.49 KB)between the AFM and the Policy Manual. You are 21 years and 4 months old when USCIS considers an immigrant visa available to you. However, you may choose to opt out of the automatic conversion and stay in second preference classification (F2B) if the waiting time for the second preference visa is shorter than the waiting time for the first preference visa. L. 106-386 (October 28, 2000). If your LPR parent filed a Form I-130 for you as his or her child and then your parent became a U.S. citizen before you turned 21, your age freezes on the date your parent became a citizen. [^ 44] See 9 FAM 502.1-1(D)(6)(a)(3), Sought to Acquire LPR Status Provision. CSPA age is calculated by subtracting the number of days the petition was pending from the applicants age on the date an immigrant visa becomes available to the applicant. So, both you and your brother do qualify for CSPA, you need to write a letter to NVC stating that you and your brother may qualify for CSPA status so please review the situation, Once NVC reviews the case, they will send invoice for you and your brother. Child Status Protection Act (CSPA) Alert: On Feb. 14, 2023, USCIS issued policy guidance in the USCIS Policy Manual to update when an immigrant visa "becomes available" for the purpose of calculating Child Status Protection Act (CSPA) age for noncitizens seeking lawful permanent resident status in a preference category. As mentioned in the assessment letter, applicants should bring any completed joint-sponsor . USCIS approved the petition on August 1, 2016. Once a Processing Complete Letter has been issued, NVC "closes" the file and places it in a queue for future use. Since the prospective applicant only had 4 months of time in which to seek to acquire during the initial period of availability, the prospective applicant has a full 1-year period beginning October 1, 2021, in which the prospective applicant may seek to acquire. Based on the CSPA rule, she should be still qualified for F2A. Certain provisions of the CSPA apply to some categories of immigrants but not others. L. 107-208 (PDF) (August 6, 2002). [^ 8] For information about the impact of CSPA on applicants for an immigrant visa, see 9 FAM 502.1-1(D), Child Status Protection Act. The DV Program registration period began on October 1, 2012, and the DV Selection Letter is dated May 1, 2013. (CSPA) you can "opt out" of conversion to the F1 visa category and remain an F2B visa applicant . [48] From the date of visa availability, family-sponsored and employment-based preference and DV adjustment applicants have 1 year in which to seek to acquire permanent resident status in order to qualify for CSPA coverage. The month . Certain Preference Applicants Who Did Not Have an Adjustment Application Pending on the Effective Date. Only the applicants who are listed on the interview appointment letter issued by the NVC must appear to be interviewed at the scheduled time. If you are a derivative asylee, your CSPA age is your age on the date your principal asylee parent or Form I-730 petitioner filed his or her Form I-589. National Visa Center (NVC) Immigrant Visa Backlog Report Last updated February 2023 Since March 2020, the COVID-19 pandemic has dramatically affected the Department of State's ability to process immigrant visa applications. For family and employment-based preference adjustment applicants, the length of time a petition was pending (pending time) is the number of days between the date that it is properly filed (filing date)[30] and the approval date. 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. For more information about CSPA, see the following: An official website of the U.S. Department of Homeland Security, An official website of the United States government, To protect your privacy, please do not include any personal information in your feedback. [46], Actions an applicant might take prior to filing an adjustment application, such as contacting an attorney or organization about initiating the process for obtaining a visa that has become available or applying for permanent residence, are not equivalent to filing an application and do not fulfill the sought to acquire requirement. Therefore, the date the visa is considered available for family and employment-based preference applicants is the later of these two dates: The first day of the month of when USCIS considers a visa available for accepting and processing an adjustment of status application for that immigrant preference category and priority date. USCIS employees should not rely on the historical versions for current laws, precedent decisions, policies, directives, guidance, and procedures. If the petitioner of a pending or approved immediate relative spousal petition dies, their spouses Form I-130 automatically converts to a widow(er)s Form I-360. See INA 204(a)(1)(D)(i)(I) and INA 204(a)(1)(D)(i)(III). If the petitioner naturalizes (becomes a U.S. citizen) before the child or unmarried son or daughter gets a Green Card, the petition is converted to either an immediate relative or family first preference case. August 1, 2016 - February 1, 2016 = 6 months (or 182 days). [^ 39] See INA 203(h)(1)(A). The DV Program registration period began on Oct. 1, 2012, and the DV selection Letter is dated May 1, 2013. See Subsection 4, Determining Age at Time of Visa Availability [7 USCIS-PM A.7(F)(4)]. To be CSPA qualified you must meet two criteria: Your "CSPA age" must be under 21 years old. In this case, the age of the child will be frozen as of the date that the I-130 is received by the government. You must submit the correct filing fee for each form unless you are exempt or eligible for a fee waiver. If your LPR parent filed a Form I-130 for you as an unmarried son or daughter (second preference classification) and then your parent became a U.S. citizen, you normally would automatically convert to a first preference classification as the unmarried son or daughter of a U.S. citizen (F1). [12] The widow(er)s child(ren), if any, must be under the age of 21 and unmarried at the time of the petitioners death to be classified as derivatives on the automatically converted Form I-360, regardless of whether the child(ren) had a separate pending or approved Form I-130 at the time of the petitioners death. The adjustment applicant must have had one of the following pending on or after the CSPAs effective date: a qualifying Refugee/Asylee Relative Petition (, The applicant must have been under the age of 21 and unmarried at the time the principal asylum applicants. A written request to transfer the underlying basis of the adjustment of status application also will meet the sought to acquire requirement, if we receive the request within 1 year of an immigrant visa becoming available in the new preference category. We approved the petition on Aug.1, 2016. [^ 9] Pending time may also include administrative review, such as motions and appeals, but does not include consular returns. [^ 17] The date a Form I-590 is considered filed is the date of the principal refugee parents interview with a USCIS officer. The applicant is 21 years and 4 months old when USCIS considers an immigrant visa available. Yes. CSPA applies to both noncitizens abroad who are applying for an immigrant visa through the Department of State (DOS) and noncitizens physically present in the United States who are applying for adjustment of status through USCIS. If you think, you are eligible under CSPA then you must write letters to NVC, Consulate and INS claiming your eligibility to speed up processing on your file. The parent files an adjustment of status application based on the second Form I-140 and is approved. U.S. This technical update replaces all instances of the term foreign national with alien throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [any person not a citizen or national of the United States]. Hi, Our case was approved 2 days after the childs 21 birthday. [27] The formula for calculating CSPA age is as follows: Age at time of visa availability - Pending time = CSPA Age, While an applicant must file an adjustment application or otherwise seek lawful permanent resident status in order to benefit from CSPA, the date the applicant files an adjustment application is not relevant for the CSPA age calculation.[28]. Instead, the filing date (receipt date) is the appropriate date. CSPA went into effect on August 6, 2002. 5 There are exceptions to this rule for VAWA self -petitioners, and qualifying self petitioning widow(er)s of U.S. citizens. See Section G, Sought to Acquire Requirement [7 USCIS-PM A.7(G)] for detailed information. Therefore, it is always in the applicants best interest to apply for adjustment of status as soon as possible when a visa first becomes available according to the chart designated by USCIS so as to lock in the applicants CSPA age. Applicants who will follow to join the principal applicant later will be interviewed separately. You will receive instructions concerning interview preparation in the appointment letter that you will receive from the NVC. For IRs and IR self-petitioners or derivatives under VAWA, a childs age is frozen on the date the Form I-130 or Form I-360 is filed, respectively. How can I request NVC to consider my son's CSPA age and grant him immigrant visa as well? L. 107-56 (PDF), 115 Stat. [^ 1] See Pub. The applicants age is frozen on the date of the refugee parents interview. Share sensitive information only on official, secure websites. The employer rescinds the parents job offer, but the parent receives a job offer from a second employer. Officers consider new evidence of extraordinary circumstances submitted with the motion to reopen, consistent with the guidance in this section. See INA 209(a)(1). Officers should follow guidance in Age-Out Protections Afforded Battered Children Pursuant to The Child Status Protection Act and the Victims of Trafficking and Violence Protection Act (PDF, 104.96 KB), issued August 17, 2004. Since your age freezes on the date the Form I-130 is filed, you benefit from the CSPA as long as your stepparent files the Form I-130 before your 21st birthday. Officers should follow guidance in Age-Out Protections Afforded Battered Children Pursuant to The Child Status Protection Act and the Victims of Trafficking and Violence Protection Act (PDF, 104.96 KB), issued August 17, 2004. If the adjustment applicant was under the age of 21 at the time the petition was filed or automatically converted, the applicant is eligible for CSPA and will not age out. The applicants CSPA age is calculated using the approved petition that forms the new basis of the adjustment of status application.[29]. CSPA allows children who turn 21 years old after an asylum application is filed but prior to adjudication to continue to be classified as children and remain eligible for derivative asylum status and adjustment of status. Officers should review the USCIS Adjustment of Status Filing Charts from the Visa Bulletin webpage to determine whether the applicant had a prior 1-year period of visa availability to file for adjustment of status. When your stepparent files a Form I-130 for you, you become an immediate relative who can use the CSPA when applying for a Green Card. HOW TO RECAPTURE/RETAIN AND UTILIZE PRIORITY DATES 4 HOW TO RECAPTURE/RETAIN AND UTILIZE PRIORITY DATES | FEBRUARY 2022 The applicant must have had a qualifying petition. Legal Authorities and Additional Guidance, CSPA age is frozen on the date the principal refugee parents Form I-590 is filed (the date of the parents interview with USCIS). However, the derivative asylee may overcome this by providing evidence establishing the parent-child relationship, including evidence of the childs age, and a reasonable explanation as to why the derivative was not included on the principals Form I-589. Chapter 8 - Inapplicability of Bars to Adjustment, Volume 1 - General Policies and Procedures, Volume 9 - Waivers and Other Forms of Relief, Volume 11 - Travel and Identity Documents, Volume 12 - Citizenship and Naturalization, Part A - Adjustment of Status Policies and Procedures, Part F - Special Immigrant-Based (EB-4) Adjustment, Part A - Secure Identity Documents Policies and Procedures, Volume 3 - Humanitarian Protection and Parole. [^ 49] Though the CSPA technically requires DV derivatives to seek to acquire within 1 year, this requirement does not generally affect DV derivatives, as they are only eligible to receive a visa through the end of the specific fiscal year in which the principal applicant was selected under INA 203(c). The formula determining the length of time the petition was pending is as follows: Approval Date - Filing Date = Pending Time. See INA 204(a)(1)(D)(i)(I) and INA 204(a)(1)(D)(i)(III). If the applicants CSPA age is over 21 at the time of subsequent visa availability, the applicant is no longer eligible for CSPA coverage. [^ 43] See 9 FAM 502.1-1(D)(6)(a)(3), Sought to Acquire LPR Status Provision. U.S. Share sensitive information only on official, secure websites. and write this SAMPLE letter to the NVC when sending the documents. When a visa becomes unavailable to the noncitizen before a continuous 1-year period has elapsed, the applicant has another 1-year period to seek to acquire when the visa once again becomes available for accepting and processing an adjustment of status application. For DV applicants, the number of days the petition was pending is the period of time between the first day of the DV application period for the program year in which the principal applicant qualified and the date on which notifications that entrants have been selected become available. For DVs, the qualifying petition is the DV Program electronic entry form. For derivative refugees, an adjustment applicants CSPA age is his or her age on the date the principal applicants Form I-590 is filed. 3) Paid the fees and submitted all the forms. See AFM 21.2(e) (PDF, 1.82 MB), The Child Status Protection Act of 2002. In order to establish extraordinary circumstances, the applicant must demonstrate that: The circumstances were not created by the applicant through his or her own action or inaction; The circumstances directly affected the applicants failure to seek to acquire within the 1-year period; and. This is referred to as the sought to acquire requirement. CSPA applies only to the following people: If you are applying for a Green Card based on one of the categories above, you are eligible for CSPA consideration if either your qualifying Form I-485, Application to Register Permanent Residence or Adjust Status, or one of the following underlying forms was filed or pending on or after Aug.6, 2002: If you are a derivative refugee, your CSPA age is your age on the date your principal refugee parent or Form I-730 petitioner filed his or her I-590, which is the date of his or her interview with a USCIS officer. See9 FAM 502.6-4, Diversity Visa Processing. If you were under the age of 21 at the time of your parents interview, your age is frozen as of that date and you will not age out. [3] CSPA does not alter this definition. [^ 32] The rank number is the number following the two-letter region code and should correspond with cut-off numbers available in the DOS Visa Bulletin. So my recent CEAC electronic submission story with new information about NVC and CPSA follows: 1) The USCIS approved petition was for a F2A (or F22 - unmarried child under 21 years) 2) NVC CEAC created the case with a F22 visa classification shown on the status page. In October 2020, USCIS designates the Dates for Filing chart of the DOS Visa Bulletin for use to apply for adjustment of status in the employment-based preference categories. The letter format is on this forum. For more information on K-4 visas, see the K-3/K-4 Nonimmigrant Visas page. See INA 204(a)(1)(D)(i)(III). U.S. The applicant must have been under the age of 21 and unmarried at the time the qualifying Form I-590 was filed. An applicant is listed as a derivative on an approved Form I-140 filed by their parents employer. For historical versions before June 11, 2021, navigate to the USCIS Policy Manual within the USCIS website at:https://archive.org, Select a date to view the historical version, An official website of the U.S. Department of Homeland Security, An official website of the United States government, Part R - Abandonment of Lawful Permanent Residence, POLICY ALERT - Age Calculation under Child Status Protection Act, POLICY ALERT - EB-5 Reform and Integrity Act of 2022, Technical Update - Adding References to the EB-5 Visa Program in Child Status Protection Act Guidance, Technical Update - Replacing the Term Alien, POLICY ALERT - Age and Sought to Acquire Requirement under Child Status Protection Act, POLICY ALERT - Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements Final Rule, Technical Update - Moving the Adjudicators Field Manual Content into the USCIS Policy Manual, Technical Update - Replacing the Term Foreign National, Technical Update - Child Status Protection Act, POLICY ALERT - Child Status Protection Act, POLICY ALERT - Adjustment of Status Policies and Procedures and 245(a) Adjustment, To protect your privacy, please do not include any personal information in your feedback. The derivative child does not have an available visa based on the Final Action Dates chart in December 2020, and cannot apply during that month. The CSPA went into effect on August 6, 2002. [16], While the child must have been unmarried in order to qualify for refugee derivative status, he or she does not need to remain unmarried in order to adjust status under INA 209.[18]. When the visa becomes available again, the applicants CSPA age is calculated based on the new visa availability date. Applicants cannot rely on the DOS Visa Bulletin alone because the Visa Bulletin merely publishes both charts; it does not state which chart can be used to determine when to file an adjustment of status application. When an applicant seeks to acquire after the 1-year period of visa availability has elapsed and does not provide an explanation or evidence of extraordinary circumstances, the officer issues a Notice of Intent to Deny (NOID) to give the applicant an opportunity to rebut the apparent ineligibility. The resulting age is known as the applicants CSPA age.. See Matter of O. Vazquez (PDF), 25 I&N Dec. 817 (BIA 2012). 1 USCIS-PM B - Part B - Submission of Benefit Requests, 7 USCIS-PM A - Part A - Adjustment of Status Policies and Procedures, 7 USCIS-PM F - Part F - Special Immigrant-Based (EB-4) Adjustment, 7 USCIS-PM M - Part M - Asylee Adjustment, 11 USCIS-PM A - Part A - Secure Identity Documents Policies and Procedures. If we previously denied your adjustment of status application, but you believe your CSPA age calculation is under 21 under this policy guidance, you may file a motion to reopen your application using a Notice of Appeal or Motion (Form I-290B). If the applicant was under the age of 21 at the time of filing, the applicant is eligible for CSPA and will not age out. To benefit from the CSPA age determination, applicant must seek to acquire lawful permanent residence within 1 year of the visa becoming available. [^ 51] In Matter of O. Vazquez, the BIA ruled that extraordinary circumstances could warrant the exercise of discretion to excuse an applicant who failed to meet the sought to acquire requirement during the 1-year period. Seek or sought to acquire is used as shorthand in this chapter to refer to this requirement. As it takes a long time to get Greencard in many categories, many dependent children may age-out while waiting and are no longer be eligible as dependents to get a green card.
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