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USCIS Clarifies Age Determination & “Sought to Acquire” Under CSPA for Child Beneficiaries

Posted November 14, 2020Cheryl Kilborn - Sr. AssociateGreen Card



On November 13, 2020, the United States Citizenship and Immigration Services (USCIS), updated its Policy Manual to provide clarification on how how it calculates a child's age under the Child Status Protection Act (CSPA). USCIS also provided further clarification on the "sought to acquire" requirement under CSPA in light of the ability of a child to submit a green card application under either the Final Action Dates or Dates for Filing charts.

Background

A “child” beneficiary under the INA is a person who is unmarried and under 21 years of age. Because child beneficiaries are often adversely affected by administrative delays in the process of adjudicating family and employment-based petitions, Congress enacted the CSPA to provide limited age-out protections for children who have turned 21 years old and who would have otherwise become ineligible to receive a green card under the definition of “child.”

Clarifications

AGE DETERMINATION

Calculation: The CSPA provides a formula for calculating a child’s “adjusted age” for purposes of continued green card eligibility as a “child” even after turning 21 years old. For family and employment-based applicants, a child’s “adjusted age” under the CSPA is calculated by subtracting the number of days the underlying immigrant petition (e.g. I-130, I-140) was pending (pending time) from the child’s age on the date an immigrant visa becomes available (age at time of visa availability).

  • USCIS clarified that if there are multiple approved immigrant petitions (e.g. I-130, I-140), a child’s “adjusted age” is calculated using the petition underlying the green card application; noting that the priority date from the earlier petition could still be retained.

Pending Time: For family and employment-based applicants, “pending time” is the number of days between the date the petition is received and receipted by USCIS and the approval date (not priority date).

  • USCIS clarified that “pending time” includes administrative review, such as motions and appeals, but does not include consular returns.

Age at Time of Visa Availability: For family and employment-based applicants, the date the visa is considered available is the later of either the date of petition approval, or the first day of the month of the DOS Visa Bulletin that indicates availability for the preference category and priority date in the Final Action Dates chart.

  • USCIS clarified that because it uses the Final Action Dates chart to determine the child’s “age at the time of visa availability” a child that applies for a green card using the Dates for Filing chart could still age-out if the child’s “adjusted age” under the CSPA is 21 or older at the time of visa availability under the Final Action Dates chart.

Visa Retrogression: Where a child files a green card application based on the Final Action Dates chart, and his or her “adjusted age” under the CSPA at the time of filing was under 21, the child’s age is locked in through final adjudication of the application, regardless of subsequent retrogression.

  • USCIS clarified that where a child files a green card application based on the Dates for Filing chart, the child’s age is not immediately locked in at the time of filing; it would be locked in when a visa becomes available under the Final Action Dates chart. USCIS also clarified that the child’s green card application would be denied if the child’s “adjusted age” was 21 or older when a visa becomes available under the Final Action Dates chart.

SOUGHT TO ACQUIRE

Sought to Acquire Requirement: In order to benefit from the CSPA “adjusted age” calculation, family and employment-based child applicants must “seek to acquire” a green card within 1 year of visa availability (Final Action Date). The date the child “seeks to acquire” for purposes of the one-year filing deadline can be satisfied by filing Form I-485, submitting Form DS-260, paying the immigrant visa fee, paying the Form I-864 review fee, or being the beneficiary of a properly filed Form I-824.

  • USCIS clarified that if the child applies for a green card under the Dates for Filing chart (prior to the date of visa availability according to the Final Action Dates chart), the child would meet the “sought to acquire” requirement; noting that child applicants who file based on the Dates for Filing chart may not ultimately be eligible for CSPA if their “adjusted age” based on the Final Action Dates chart is 21 or older.
  • USCIS also clarified that in order to benefit from CSPA, a child applicant has 1 year to meet the “sought to acquire” requirement when a visa becomes available according the Final Action Dates chart; explaining that any retrogression in the Dates for Filing chart is not considered retrogression for CSPA purposes.

Next Steps

The October and November 2020 Visa Bulletins saw substantial forward movement for all categories of employment-based immigrants, particularly those in the EB-3 category. This provided the opportunity for many Indian nationals with previously established EB-2 priority dates to submit green card applications in the EB-3 category for themselves and their family members. It is important to understand that the filing of a green card for a child based on the October and November 2020 Visa Bulletins' Dates for Filing chart does not necessarily protect a child from aging-out if the child will soon be turning 21 years of age.

Because initial I-140 petitions are often filed with premium processing, the opportunity to file a second I-140 petition in the EB-3 category is welcome news as it allows for the possibility of a longer pending petition for purposes of the CSPA “adjusted age” calculation. USCIS clarified in the Policy Memorandum that the second I-140 would serve as the basis for calculating "pending time" because it's the basis of the green card application.

Meltzer Hellrung monitors the Final Action Dates chart each month and runs reports to assess whether there are child applicants approaching an age-out issue. If you have any questions or concerns about the impact of CSPA, please contact your designated Meltzer Hellrung attorney or send an email to consultation@meltzerhellrung.com.