By: Lihua Tan

Introduction

U.S. Citizenship and Immigration Services (USCIS) has issued new policy guidance to clarify when an immigrant visa is available to calculate Child Status Protection Act (CSPA) age in certain circumstances.

Generally, if a child turns 21 during the immigration process, they are no longer eligible to immigrate along with their parent’s petition. Congress passed the CSPA to protect certain noncitizen children from “ageing out” during the immigration process. Under the CSPA, a child’s age is calculated based on when an immigrant visa number is available.

What does this mean for those waiting on immigrant visas?

• Under the new policy guidance, to calculate the CSPA age, USCIS will consider a visa to be immediately available when it accepts and processes the adjustment of status application:
  • When USCIS announces that applicants should use the Dates for Filing chart to file adjustment of status applications, then USCIS will use the Dates for Filing chart to calculate the applicant’s CSPA age.
  • When USCIS announces that applicants should use the Final Action Dates chart to file adjustment of status applications, then USCIS will use the Final Action Dates chart to calculate the applicant’s CSPA age.
• This policy change is effective immediately and will apply to pending applications.
• Applicants may file a motion to reopen a previously denied adjustment of status application if they are now eligible under this new policy.

Conclusion

This new policy change resolves any apparent contradiction between different dates in the visa bulletin and the statutory text regarding when a visa is  “available.” Those with pending adjustment of status applications may now have a CSPA age that is under 21 based on this change.

For any questions regarding new policy change on Child Status Protection Act age calculation, please contact your trusted Chugh, LLP immigration professional.