Recently, U.S. Citizenship and Immigration Services (USCIS) announced that it has updated when an immigrant visa number “becomes available” for the purpose of calculating a noncitizen’s age in certain situations under the Child Status Protection Act (CSPA).
For a “child” to apply for lawful permanent resident (LPR) status (also known as a green card) in the U.S. based on their parent’s approved petition for a family-sponsored or employment-based visa, the child must be unmarried and under the age of 21. If the child turns 21 during the immigration process, they will have “aged out,” meaning they would have to file a new petition or application, wait even longer to get a green card, or may no longer be eligible for a green card.
Congress recognized that many children were aging out due to large USCIS processing backlogs. In response, it enacted the CSPA to protect certain noncitizen children from “aging out” by providing a method to calculate the child’s age that considers when an immigrant visa number “becomes available.” The Department of State’s (DOS) Visa Bulletin is used to determine when a visa number becomes available. The Visa Bulletin has two charts: (1) the Dates for Filing chart and (2) the Final Action Date chart. Prior to the USCIS policy change, the agency used to consider a visa available for purposes of the CSPA age calculation based only on the Final Action Date chart, even if a noncitizen could apply for adjustment of status using the earlier date in the “Dates for Filing” chart.
Under the USCIS policy change, USCIS will now use the Dates for Filing chart to calculate these noncitizens’ ages for CSPA purposes, which provides these noncitizens with more certainty about their eligibility to adjust status. If these noncitizens are eligible to adjust status because of the change in policy and they have filed for adjustment of status (AOS), they will also be eligible to apply for employment and travel authorization based on their pending adjustment of status application, and they generally will not lose previously issued employment or travel authorization.
This USCIS policy change is effective immediately and applies to pending applications. Therefore, some noncitizens with a pending application may now have a CSPA age that is under 21 based on this change. Noncitizens may file a motion to reopen their previously denied AOS application with USCIS by using Form I-290B, Notice of Appeal or Motion. Noncitizens must generally file motions to reopen within 30 days of the decision. For a motion filed more than 30 days after the denial, USCIS may, in its discretion, excuse the untimely filing of the motion if the noncitizen demonstrates that the delay was reasonable and was beyond the noncitizen’s control.
It is important to note that this USCIS policy change will not prevent all children from aging out before an immigrant visa is available to them, nor will it prevent children from losing nonimmigrant status derived from their parents upon reaching the actual age of 21. However, USCIS said it will continue to explore all options available under the law to aid this population.
If you have any questions about this USCIS policy change, please contact our office to set up a consultation with one of our attorney’s today!
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