U.S. Citizenship and Immigration Services recently announced updated guidance regarding when an immigrant visa number “becomes available” for the purposes of calculating a noncitizen’s age under the Child Status Protection Act (CSPA). In short, this new guidance should result in fewer child applicants for adjustment of status “aging out” and losing the ability to obtain lawful permanent residence based on their parent’s approved petition for a family-sponsored or employment-based visa.
In order for a child to obtain lawful permanent residence as a derivative beneficiary of their parent’s case, the child must be under the age of 21. Once the child turns 21, they “age out” and no longer qualify to obtain permanent residency as a derivative on their parent’s case. Due to caps on the number of visas available annually, and lengthy processing delays, many children age out and lose the ability to obtain permanent residency with their parents.
The CSPA was enacted in the early 2000s to address this “aging out” problem. In certain family and employment-based preference categories, the CSPA provides a formula for calculating an applicant’s “CSPA-Adjusted Age” based on the length of time the underling immigrant visa petition was pending and the date when an immigrant visa “became available” to an applicant.
Previously, USCIS considered a visa “available” for purposes of the CSPA-Adjusted Age calculation based on the Final Action Date Chart on the U.S. Department of State’s monthly Visa Bulletin. But under this new guidance, USCIS will use the Date for Filing Chart for purposes of calculating the CSPA-Adjusted Age. This change will provide noncitizens with more certainty about whether they are protected from aging out at the time they file their applications for adjustment of status.
If you have questions about this new guidance, or whether you might benefit from the CSPA, please contact us to discuss your case.
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