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). For information regarding implementation, see Appendix: 2020 Fee Rule Litigation Summary. [10], Certain Preference Applicants with No Adjustment Application Pending on the Effective Date. Immediate relatives(including derivatives of widow(er)s); Family-sponsored preference principal applicants and derivative applicants; Violence Against Women Act (VAWA) self-petitioners and derivative applicants; Employment-based preference derivative applicants; Diversity Immigrant Visa (DV) derivative applicants; Form I-590, Registration for Classification as a Refugee; or, The first day of the month of when USCIS considers a visa available for filing an adjustment of status application based on your immigrant preference category, country of chargeability, and priority date. [^ 20] See Section C, Immediate Relatives [7 USCIS-PM A.7(C)], Section D, Derivative Asylees [7 USCIS-PM A.7(D)], and Section E, Derivative Refugees [7 USCIS-PM A.7(E)]. If the applicants CSPA age is over 21 at the time of subsequent visa availability, the applicant is no longer eligible for CSPA coverage. APPLICATION OF THE CHILD STATUS PROTECTION ACT TO THE CHILDREN OF U.S. CITIZEN PETITIONERS 2 APPLICATION OF THE CSPA TO THE CHILDREN OF U.S. CITIZEN PETITIONERS | DECEMBER 2018 B. Child's Age Frozen on the Date of the Parent's Naturalization The CSPA also amended Section 201 of the INA to provide that if a permanent resident parent who had filed a visa August 1, 2016 - February 1, 2016 = 6 months (or 182 days). U.S. However, a transfer of underlying basis request can also result in potential derivative beneficiaries become eligible to adjust status as a derivative because their calculated CSPA age based on the petition is under 21 years of age. CSPA provides that the age of the child will be frozen in each of the following 3 circumstances: 1) If the US citizen parent submits an I-130 visa petition for a child prior to his or her 21st birthday. Secure .gov websites use HTTPS In order to protect children from aging out of their cases at age 21, CSPA may extend the eligibility of the applicant, should the applicant meet the CSPA requirements. 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. Instead, CSPA provides a method for calculating a persons age to see if they meet the definition of a child for immigration purposes. This also applies to circumstances when USCIS approves a request to transfer the underlying basis of a pending adjustment of status application to a different immigrant category based on another approved petition. In order to include his or her child(ren) on the self-petition as derivatives, the child(ren) must be under the age of 21 and unmarried when the Form I-360 is filed, regardless of whether the child(ren) had a separate or approved Form I-130 when the Form I-360 was filed.[14]. Official websites use .gov 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. This chapter primarily focuses on the impact of CSPA on adjustment applicants, though the same principles generally apply to noncitizens seeking an immigrant visa through DOS.[8]. [49], Impact of Visa Unavailability on the 1-Year Sought to Acquire Requirement. The applicants age is frozen on the date of the refugee parents interview. More Immigration US visas Immigrant visas In order to qualify as a stepchild, the marriage between your U.S. citizen stepparent and your K3 nonimmigrant parent must have occurred before your 18th birthday. 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. Approval Date NVC will send another invoice for both of your child once the visa date/priority date confirmed that they are qualified for CSPA. Therefore, the applicants pending time is 7 months. 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. [^ 29] A transfer request potentially affects the CSPA age calculation for the derivative beneficiaries. Therefore, the applicants petition pending time is 6 months (or 182 days). Seek or sought to acquire is used as shorthand in this chapter to refer to this requirement. For DVs, the qualifying petition is the DV Program electronic entry form. 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. We approved the petition on Aug.1, 2016. Hi, Our case was approved 2 days after the childs 21 birthday. On April 1, 2021, a visa is no longer available to the prospective applicant. Applicants who will follow to join the principal applicant later will be interviewed separately. To be CSPA qualified you must meet two criteria: Your "CSPA age" must be under 21 years old. 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. U.S. Share sensitive information only on official, secure websites. 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]. . CSPA applies only to those applicants specified in the statute: Family-sponsored preference principals and derivatives; Violence Against Women Act (VAWA) self-petitioners and derivatives;[4], Employment-based preference derivatives;[5]. Under Section 424 of the USA PATRIOT Act, if a qualifying form was filed before September 11, 2001, then the applicant is afforded an additional 45 days of eligibility.[11]. . This page was not helpful because the content: Chapter 9 - Death of Petitioner or Principal Beneficiary, Chapter 10 - Legal Analysis and Use of Discretion, Part I - Adjustment Based on Violence Against Women Act, Part J - Trafficking Victim-Based Adjustment, Part Q - Rescission of Lawful Permanent Residence, Adjustment of Status Filing Charts from the Visa Bulletin, Age-Out Protections Afforded Battered Children Pursuant to The Child Status Protection Act and the Victims of Trafficking and Violence Protection Act, How to Use the USCIS Policy Manual Website, Appendix: 2020 Fee Rule Litigation Summary. A preference applicant whose visa became available on or after August 7, 2001 who did not seek to acquire within 1 year of such visa availability but who would have qualified for CSPA coverage had he or she applied, but for prior policy guidance concerning the CSPA effective date, may still apply for adjustment of status. [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. 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. DV applicants also use the DOS Visa Bulletin to determine visa availability. U.S. * Got USCIS receipt notice on April 08, 2011. If an eligible applicant filed an adjustment of status application but later a visa is not available for issuance based on the DOS Visa Bulletin Final Action Dates chart for the applicants priority date, country of chargeability, and visa category, USCIS holds the application until the visa becomes available for issuance and the application can be adjudicated. The CSPA went into effect on August 6, 2002. The CSPA does not solve the problem of "age outs" for all children of LPRs and other derivative beneficiaries. U.S. 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. 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. The following table outlines immigrant categories covered by CSPA, methods by which CSPA age is calculated, whether the sought to acquire requirement applies, and references to legal authorities and additional guidance. He said we need to write a letter to tell them why we believe. 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. The noncitizen cannot benefit from the age-out protections of the CSPA. Secure .gov websites use HTTPS Limited CSPA Coverage for K-2 Nonimmigrants. Officers consider new evidence of extraordinary circumstances submitted with the motion to reopen, consistent with the guidance in this section. or NVC; pay the affidavit of support fee with the NVC; file the DS-260 . The applicant also files an adjustment of status application based on the second Form I-140. 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. CSPA may also still apply to a preference applicant whose immigrant petition was approved prior to August 6, 2002, and who did not have an adjustment application pending on August 6, 2002, but who subsequently applied for adjustment and was denied solely for aging out. 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. On February 1, 2021, a visa is no longer available to the prospective applicant under either chart and therefore, the prospective applicant is no longer eligible to file an adjustment of status application. A visa initially becomes available to the prospective applicant according to the Final Action Dates chart on March 1, 2020, which USCIS designated for use in that month. 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. The applicants mother filed a petition on the applicants behalf on February 1, 2016. [^ 40] VAWA preference cases are subject to the sought to acquire requirement, but VAWA IRs are not. In other words, the applicants age is frozen on the date the Form I-589 is filed. 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. Denials that were based on the failure to seek to acquire and issued prior to the decision in Matter of O. Vazquez[51] were proper based on the law in effect at the time of the decision. (CSPA), visa applicants can "opt out" of conversion to the F1 visa category and remain an F2B visa applicant. In order to calculate an adjustment applicants CSPA age according to the formula above, the officer must first determine the age at time of visa availability. [^ 28] See Section G, Sought to Acquire Requirement [7 USCIS-PM A.7(G)] for detailed information. Family-Sponsored Preference Principals and Derivatives (including VAWA)[54]. 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). 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. [^ 35] USCIS typically designates one of the two charts within 1 week of the publication of the DOS Visa Bulletin. Since October 2015, the Visa Bulletin has featured two charts per immigrant preference category: USCIS designates one of the two charts for use by applicants each month. Example: Visa Becomes Unavailable Before Filing. See 9 FAM 502.6-4, Diversity Visa Processing. This technical update clarifies thatcertain child beneficiaries of family-sponsored immigrant visa petitions who are ineligible for the Child Status Protection Act may continue their adjustment of status application if the petition is automatically converted to an eligible category. 7 USCIS-PM B - Part B - 245(a) Adjustment, 7 USCIS-PM L - Part L - Refugee Adjustment. 6 USCIS-PM G.1 - Chapter 1 - Purpose and Background, 6 USCIS-PM G.2 - Chapter 2 - Eligibility Requirements, 7 USCIS-PM A.3 - Chapter 3 - Filing Instructions, 7 USCIS-PM A.6 - Chapter 6 - Adjudicative Review, 7 USCIS-PM B.2 - Chapter 2 - Eligibility Requirements, 7 USCIS-PM B.8 - Chapter 8 - Inapplicability of Bars to Adjustment. [^ 24] See Section B, Child Status Protection Act Applicability [7 USCIS-PM A.7(B)] for more information on effective date. [3] CSPA does not alter this definition. The widow(er)s children, if any, who are under the age of 21 and unmarried at the time of the petitioners death can be classified as derivatives on the automatically converted Form I-360 and therefore qualify for the CSPA. USCIS denied the adjustment application solely because the applicant had aged out. * Child Status Protection Act Date Of Birth* Priority Date* Approval Date* Date when Petition Became Current * UNDERSTAND THE TERMS Priority Date It is the date when your Petition was filed. [^ 11] See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. The applicant must indicate whether a complaint has been filed with the appropriate disciplinary authorities about any violations of counsels legal or ethical responsibilities, or explain why a complaint has not been filed. Review our. The applicant must have been under the age of 21 and unmarried at the time the qualifying Form I-590 was filed. 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. In most cases, you do not need a Form I-130 to get a Green Card if you are a K-2 nonimmigrant. Your petition was pending for 6 months. If you are a family preference (including VAWA self-petition), employment-based preference, or diversity visa (DV) applicant, calculate your CSPA age by subtracting the number of days your petition was pending (pending time) from your age on the date an immigrant visa becomes available to you (age at time of visa availability). To find remaining AFM content, see the crosswalk (PDF, 350.49 KB)between the AFM and the Policy Manual. The letter format is on this forum. Thinking the NVC was acting on the case, the family sat back and waited for further word. Such retrogression can affect either chart in the Visa Bulletin and may result in a visa becoming unavailable to the prospective applicant for accepting and processing their application. Even though visas are available to a principal applicant and derivative child based on their priority date and country of chargeability in both October and November, the derivative child does not apply for adjustment of status in October or November (while the principal does apply). Transferring to a new basis will result in a new calculated CSPA age, as the amount of time the petition was pending will change as will the derivative beneficiarys age at the time of visa availability. See Part M, Asylee Adjustment, Chapter 2, Eligibility Requirements, Section C, Derivative Asylee Continues to be the Spouse of Child of the Principal Asylee, Subsection 2, Derivative Asylees Ineligible for Adjustment of Status [7 USCIS-PM M.2 (C)(2)]. The Immigration and Nationality Act (INA) defines a child as a person who is both unmarried and under 21 years old. However, CSPA does not change the requirement that you must be unmarried in order to remain eligible for classification as a child. From the date of visa availability, and provided that the visa remains available for a continuous 1-year period, the applicant has 1 year to fulfill the sought to acquire requirement. This may be beneficial because . [^ 45] Applicants may file the Form I-824 concurrently with the adjustment application. The core purpose of the Child Status Protection Act (CSPA)[1] was to alleviate the hardships faced by certain noncitizens who were previously classified as children for immigrant visa purposes, but who, due to the time required to adjudicate petitions, had turned 21 years old and consequently became ineligible to receive such immigrant visas. The applicant already had a continuous 1-year period in which to seek to acquire. 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. 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 INA 204(a)(1)(D)(i)(I) and INA 204(a)(1)(D)(i)(III). 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. An applicant is listed as a derivative on an approved Form I-140 filed by their parents employer. See INA 204(a)(1)(I). 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. The parent files an adjustment of status application based on the second Form I-140 and is approved. Examples of extraordinary circumstances that may warrant a favorable exercise of discretion include, but are not limited to: Serious illness or mental or physical disability of the applicant during the 1-year period; Legal disability, such as instances where the adjustment applicant suffered from a mental impairment, during the 1-year period; Instances where a timely adjustment application was rejected by USCIS as improperly filed and was returned to the applicant for corrections where the deficiency was corrected and the application re-filed within a reasonable period thereafter; Death or serious illness or incapacity of the applicants attorney or legal representative or a member of the applicants immediate family; and. Certain provisions of the CSPA apply to some categories of immigrants but not others. The applicants underlying petition was pending for 6 months. The delay was reasonable under the circumstances. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual to remove references to Biographic Information (Form G-325A). The applicant would have been considered under the age of 21 under applicable CSPA rules; The applicant applied for adjustment of status within 1 year of visa availability; and. The CSPA was enacted to preserve child status for certain beneficiaries who would otherwise "age out" (turn 21 years old before they could be issued a visa) due to administrative delays in visa processing. It helps lock in the age and preserve the "child" status of both immediate relatives and those in the preference categories. Depending on the facts of the particular case, a derivative beneficiary may become ineligible to adjust status as a derivative as a result of a transfer request because their new calculated CSPA age is no longer under 21 years of age. [^ 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.