If a visa initially becomes available and then becomes unavailable[38] for accepting and processing an adjustment of status application before the potential adjustment applicant has filed an application, the applicants CSPA age is not locked in. Calculate your CSPA age as follows: 21 years and 4 months - 6 months = 20 years and 10 months. 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. If the prospective applicant has a priority date in their country of chargeability and preference category that is later than the Final Action Date, then a visa is no longer available to them for accepting and processing their application during the given month. In this case, the age of the child will be frozen as of the date that the I-130 is received by the government. If an applicant has multiple approved petitions, the applicants CSPA age is calculated using the petition that forms the underlying basis for the adjustment of status application. 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). You must check the. The approval notice will also show you which office approved your Form I-130. [32], Determining When an Applicant May File an Adjustment Application and When a Visa is Available for the CSPA Age Calculation. 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. [^ 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. In order to benefit from CSPA as a family preference (including VAWA self-petition), employment-based preference, or DV applicant, you must seek to acquire lawful permanent resident status within 1 year of when a visa becoming available to you for filing an adjustment of status application. 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. See INA 204(a)(1)(D)(i)(III). The applicants CSPA age is calculated using the approved petition that forms the new basis of the adjustment of status application.[29]. More Immigration US visas Immigrant visas 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. 1 USCIS-PM - Volume 1 - General Policies and Procedures, 7 USCIS-PM - Volume 7 - Adjustment of Status, 9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief, 10 USCIS-PM - Volume 10 - Employment Authorization, 11 USCIS-PM - Volume 11 - Travel and Identity Documents, 12 USCIS-PM - Volume 12 - Citizenship and Naturalization. 5 There are exceptions to this rule for VAWA self -petitioners, and qualifying self petitioning widow(er)s of U.S. citizens. 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. 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). 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)]. For DVs, the qualifying petition is the DV Program electronic entry form. The Child Status Protection Act (CSPA) was enacted in order to keep immigrant families intact despite family-based and employment-based waiting times which can be long. To find remaining AFM content, see the crosswalk (PDF, 350.49 KB)between the AFM and the Policy Manual. 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. See INA 204(a)(1)(I). This technical update to Volume 7 includes references to the EB-5 visa program and Form I-526, Immigrant Petition by Alien Investor, and clarifications regarding the Child Status Protection Act eligibility of derivative applicants of the VAWA-based Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. U.S. First, the date in the DOS Visa Bulletin for the prospective applicants country of chargeability and preference category may retrogress or move backwards. See Part L, Refugee Adjustment, Chapter 2, Eligibility Requirements, Section F, Special Considerations for Refugee Adjustment of Status Applicants, Subsection 2, Child Status Protection Act Provisions [7 USCIS-PM L.2(F)(2)]. Only the applicants who are listed on the interview appointment letter issued by the NVC must appear to be interviewed at the scheduled time. [^ 17] The date a Form I-590 is considered filed is the date of the principal refugee parents interview with a USCIS officer. USCIS employees should not rely on the historical versions for current laws, precedent decisions, policies, directives, guidance, and procedures. 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). 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] Instead of freezing the age of the applicant on the filing date, as is the case with IRs, CSPA provides a formula by which the preference applicants CSPA age is calculated in a manner that takes into account the amount of time the qualifying petition was pending. L. 106-386 (PDF) (October 28, 2000). See Chapter 9, Death of Petitioner or Principal Beneficiary [7 USCIS-PM A.9] for more information. The applicants underlying petition was pending for 6 months. [^ 45] Applicants may file the Form I-824 concurrently with the adjustment application. For DV derivative applicants, the number of days the petition was pending is the period of time between the start of the DV Program registration period and the date of the DV selection letter. However, in December 2020, USCIS designates the Final Action Dates chart for use by prospective applicants in the employment-based preference categories. [^ 24] See Section B, Child Status Protection Act Applicability [7 USCIS-PM A.7(B)] for more information on effective date. 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. However, you must remain unmarried in order to qualify. So long as the child was under 21 on the date of the interview, he or she will not age out of eligibility for derivative refugee status or adjustment of status. 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. [7] CSPA only covers those immigrants explicitly listed in the statute; it does not apply to any other immigrants or nonimmigrants. Share sensitive information only on official, secure websites. An applicant is listed as a derivative on an approved Form I-140 filed by their parents employer. The delay was reasonable under the circumstances. The resulting age is known as the applicants CSPA age.. 21 years 9 months old. The CSPA does not solve the problem of "age outs" for all children of LPRs and other derivative beneficiaries. The DV Program registration period began on October 1, 2012, and the DV Selection Letter is dated May 1, 2013. Second, while the dates in the Visa Bulletin for the prospective applicants country of chargeability and preference category may not retrogress, USCIS may designate the Final Action Dates chart for use during a given month after having designated the Dates for Filing chart for use during the preceding month. How can I request NVC to consider my son's CSPA age and grant him immigrant visa as well? Therefore, the applicants CSPA age is under 21. [^ 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). [36], The applicants CSPA age is determined based on how long the applicants underlying petition was pending and the applicants age when a visa became available to the applicant or the petition is approved, whichever is later. USCIS approved the petition on August 1, 2016. The History tab was added to the USCIS Policy Manual on June 11, 2021, and provides historical versions on and after that date. For more information, see Volume 7, Part A, Chapter 7, Part F, Section 2, of the USCIS Policy Manual. 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. L. 106-386 (October 28, 2000). [^ 41] See Chapter 3, Filing Instructions, Section B, Definition of Properly Filed [7 USCIS-PM A.3(B)]. 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. To create an account, you will need your passport. The derivative applicants CSPA age is calculated using the petition underlying the principal beneficiarys adjustment of status application, in other words, the second Form I-140. 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. Limited CSPA Coverage for K-4Nonimmigrants. Collect all the supporting documents and fill out DS-260 (include your child's name on DS-260). We approved the petition on Aug.1, 2016. [^ 53] For more detailed guidance on CSPA applicability and VAWA, see INA 204(a)(1)(D)(i) and 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. 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. For more information about K-1 and K-2 nonimmigrant visas, see the Fianc(e) Visas page. 3) Paid the fees and submitted all the forms. This guidance is effective immediately and applies to adjustment of status applications we adjudicate on or after Feb. 14, 2023. Therefore, the applicants pending time is 7 months. [21] Furthermore, the applicants eligibility depends not only on the CSPA age calculation but also on whether the applicant sought to acquire lawful permanent residence within 1 year of visa availability.[22]. If you want to opt out of the automatic conversion, you must submit a written request to the USCIS office that approved your Form I-130. The petition had been pending for three months before it was approved, so that period of time can be subtracted from the child's age. 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. If you were under the age of 21 at the time your parent filed Form I-589, your age is frozen as of that date and you will not age out. The historical versions linked below reflect the pertinent policy in effect on that date and dates reflect when updates occurred. and write this SAMPLE letter to the NVC when sending the documents. 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. 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. Applicants must file the Notice of Appeal or Motion (Form I-290B) with the proper fee and should present their claim that the finding in Matter of O. Vazquez constitutes changed circumstances justifying the reopening of the adjustment application. L. 107-208 (PDF) (August 6, 2002). If a VAWA self-petitioner was the beneficiary of a previously filed Petition for Alien Relative (Form I-130), the VAWA self-petitioner and the VAWA self-petitioners derivatives CSPA age is calculated using the date the Form I-360 was filed because this is the petition through which they are seeking adjustment of status. Review our. [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. 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. Certain provisions of the CSPA apply to some categories of immigrants but not others. It is important to note that this NVC-generated assessment letter will not hold up the qualification of the case for appointment at post. 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. The CSPA went into effect on August 6, 2002. U.S. Your mother filed a petition for you on Feb.1, 2016. Unmarried Son or Daughter of LPR (F2B) Becomes Unmarried Son or Daughter of U.S. Citizen (F1). [^ 52] This includes Form I-730 beneficiaries. 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. The priority date should not be used for purposes of determining CSPA eligibility. As per CSPA calculator, his CSPA age remains under 21 till November 2017. The applicant already had a continuous 1-year period in which to seek to acquire. For a motion filed more than 30 days after the denial, if the noncitizen demonstrates that the delay was reasonable and was beyond their control, we may, in our discretion, excuse the untimely filing of the motion. [^ 23] Qualifying underlying forms include Petition for Alien Relative (Form I-130); Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360);Immigrant Petition for Alien Workers (Form I-140); Immigrant Petition by Standalone Investor (Form I-526); and Immigrant Petition by Regional Center Investor (Form I-526E). On April 1, 2021, a visa is no longer available to the prospective applicant. You should not have your exam until your interview has been scheduled. Generally, in order to qualify, the derivative refugee must be listed as a child on the principal applicants Form I-590 prior to a final decision. . If we approve a request to transfer the underlying basis of the pending adjustment of status application, calculate the CSPA age using the approved petition that forms the new basis of the adjustment application. However, USCIS considers untimely motions to reopen for denials issued after the Matter of O. Vazquez precedent (June 8, 2012), but only if the denial was based solely on the adjustment applicants failure to seek to acquire within 1 year. Age at Time of Visa Availability - Pending Time = CSPA Age. 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. If you do not meet the sought to acquire requirement, we may use our discretion to excuse you from this requirement, if you can establish that your failure to meet this requirement was the result of extraordinary circumstances. [^ 30] While the priority date is often the same as the filing date (also referred to as the receipt date), there are instances in which the priority date is not the same, such as in employment-based cases based on the filing of a labor certification. In most cases, you do not need a Form I-130 to get a Green Card if you are a K-2 nonimmigrant. [39] This requirement does not apply to refugee derivatives, asylee derivatives, and IRs.[40]. Example: Visa Becomes Unavailable Before Filing. Your petition was pending for 6 months. [^ 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. CSPA (Child Status Protection Act) Calculator. In between we also sent an email to NVC to know the status of our CSPA application for which they replied on 22nd July 2016 like this Quote This case is currently under review for applicability of the Child Status Protection Act (CSPA). [^ 28] See Section G, Sought to Acquire Requirement [7 USCIS-PM A.7(G)] for detailed information. 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. 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 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. This guidance becomes effective October 2, 2020. Secure .gov websites use HTTPS Official websites use .gov Note:Certain forms, including Form I-290B, have a filing fee. The applicants mother filed a petition on the applicants behalf on February 1, 2016. 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). In order to warrant a favorable exercise of discretion, the circumstances must truly be extraordinary and beyond the adjustment applicants control. 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. 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. 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. For DVs, the date a visa is considered available is the first day on which the principal applicants rank number is current for visa processing. 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. [^ 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. Therefore, the applicants petition pending time is 6 months (or 182 days). If you are an immediate relative, a VAWA self-petitioning abused spouse or child of a U.S. citizen, or a derivative child of a VAWA self-petitioning abused spouse or child of a U.S. citizen, your age is frozen on the date the Form I-130 or Form I-360 is filed. Hi, Our case was approved 2 days after the childs 21 birthday. CSPA CALCULATOR Fill in the fields below for CSPA Calculator * Fields with *are required fields. [15], CSPA allows children who turn 21 years old after a refugee application is filed but prior to adjudication to continue to be classified as children and remain eligible for derivative refugee status. For information regarding implementation, see Appendix: 2020 Fee Rule Litigation Summary. See9 FAM 502.6-4, Diversity Visa Processing. 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. . 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. [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]. For more information, see Part F, Special Immigrant-Based (EB-4) Adjustment [7 USCIS-PM F]. Please see theFiling Feespage for more information. You must submit the correct filing fee for each form unless you are exempt or eligible for a fee waiver. U.S. See Section G, Sought to Acquire Requirement [7 USCIS-PM A.7(G)] for detailed information. Approval Date [49], Impact of Visa Unavailability on the 1-Year Sought to Acquire Requirement. See INA 204(a)(1)(D)(i)(I) and INA 204(a)(1)(D)(i)(III). 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. 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. However, we called NVC and was told that she was moved to F2B. CSPA. It is important to note that while USCIS designates one of the charts for use by applicants each month for accepting and processing adjustment of status applications, the Final Action Dates chart always governs when a visa is authorized for issuance to an applicant. [^ 44] See 9 FAM 502.1-1(D)(6)(a)(3), Sought to Acquire LPR Status Provision. [^ 26] In addition to CSPA protections, VAWA self-petitioners and derivatives who turn 21 prior to adjusting status may be eligible for age-out protections provided in the Victims of Trafficking and Violence Protection Act (VTPVA) of 2000, Pub. The applicant must be unmarried at the time he or she seeks adjustment of status. 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. For more information on CSPA age calculation, see Volume 7, Part A, Chapter 7, Part F, Section 2 of the USCIS Policy Manual. However, if the qualifying underlying form was approved prior to the effective date, an applicant who applies for adjustment of status after the effective date may still qualify for CSPA coverage. If you were under the age of 21 at the time the petition was filed, you are eligible for CSPA and will not age out. 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. 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. Looking for U.S. government information and services? [33] The date USCIS considers a visa available for accepting and processing an adjustment of status application according to the USCIS website and the Visa Bulletin is also the date USCIS considers a visa available for CSPA purposes if the petition is already approved. 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. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual regarding the Child Status Protection Act (CSPA), to include how USCIS calculates age under certain contexts and what actions satisfy the sought to acquire requirement. Read Shimanto's reply, I posted the format there. When the visa becomes available again, the applicants CSPA age is calculated based on the new visa availability date. Certain Preference Applicants Who Did Not Have an Adjustment Application Pending on the Effective Date. [^ 10] See Matter of Avila-Perez (PDF), 24 I&N Dec. 78 (BIA 2007). See INA 204(a)(1)(D)(i)(I) and INA 204(a)(1)(D)(i)(III). The applicant may file an untimely motion to reopen or reconsider without a filing fee if: Special rules apply in cases where an adjustment applicant would otherwise age out on or after August 6, 2002.

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