The formula determining the length of time the petition was pending is as follows: Approval Date - Filing Date = Pending Time. Limited CSPA Coverage for K-2 Nonimmigrants. 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. The delay was reasonable under the circumstances. For more information, see Volume 7, Part A, Chapter 7, Part F, Section 2, of the USCIS Policy Manual. It helps lock in the age and preserve the "child" status of both immediate relatives and those in the preference categories. A lock ( A locked padlock ) or https:// means you've safely connected to the .gov website. Alert: On Feb. 14, 2023, USCIS issued 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 for noncitizens seeking lawful permanent resident status in a preference category. 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. L. 107-56 (PDF), 115 Stat. For DV applicants, the number of days the petition was pending is the period of time between the first day of the DV application period for the program year in which the principal applicant qualified and the date on which notifications that entrants have been selected become available. 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. For more information about CSPA, see the following: An official website of the U.S. Department of Homeland Security, An official website of the United States government, To protect your privacy, please do not include any personal information in your feedback. The derivative may be eligible to retain the priority date from the first Form I-140, but the CSPA calculation uses the second petition, because this is the petition through which the principal beneficiary obtained adjustment of status and that forms the basis for the applicants adjustment of status application. On April 1, 2021, a visa is no longer available to the prospective applicant. Official websites use .gov Unfortunately, the CSPA requires that if a child is eligible, the child must "seek to acquire" a visa within one year. A .gov website belongs to an official government organization in the United States. If you do not know which USCIS office approved your Form I-130, you may call our USCIS Contact Center. Calculate your CSPA age as follows: 21 years and 4 months - 6 months = 20 years and 10 months. Hello there, Congratulations, you and your brother both qualify for CSPA, what you should do is when you send supporting documents for your parents to the NVC, send a letter to the NVC with your and your brother's name, date of birth and ask NVC to review the file since you may qualify for CSPA. Congress recognized that many children were aging out due to large USCIS processing backlogs, so it enacted the Child Status Protection Act (CSPA) to protect certain children from aging out. 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)]. Therefore, it is always in the applicants best interest to apply for adjustment of status as soon as possible when a visa first becomes available according to the chart designated by USCIS so as to lock in the applicants CSPA age. [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. The History tab was added to the USCIS Policy Manual on June 11, 2021, and provides historical versions on and after that date. In order to warrant a favorable exercise of discretion, the circumstances must truly be extraordinary and beyond the adjustment applicants control. The applicant must be unmarried at the time he or she seeks adjustment of status. [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 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). In these circumstances, you are not eligible for and do not need CSPA in order to get a Green Card. The CSPA was enacted to preserve child status for certain beneficiaries who would otherwise "age out" (turn 21 years old before they could be issued a visa) due to administrative delays in visa processing. However, in December 2020, USCIS designates the Final Action Dates chart for use by prospective applicants in the employment-based preference categories. Officers consider new evidence of extraordinary circumstances submitted with the motion to reopen, consistent with the guidance in this section. On February 1, 2021, a visa is no longer available to the prospective applicant under either chart and therefore, the prospective applicant is no longer eligible to file an adjustment of status application. He said we need to write a letter to tell them why we believe. Diversity immigrant visa (DV) derivatives; CSPA provisions vary based on the immigrant category of the applicant. 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. See 9 FAM 502.6-4, Diversity Visa Processing. (CSPA) you can "opt out" of conversion to the F1 visa category and remain an F2B visa applicant . See INA 204(a)(1)(D)(i)(I) and INA 204(a)(1)(D)(i)(III). While K nonimmigrants are not covered under CSPA, K-2 and K-4 nonimmigrants may benefit from CSPA under certain limited circumstances. . Chapter 8 - Inapplicability of Bars to Adjustment, Volume 1 - General Policies and Procedures, Volume 9 - Waivers and Other Forms of Relief, Volume 11 - Travel and Identity Documents, Volume 12 - Citizenship and Naturalization, Part A - Adjustment of Status Policies and Procedures, Part F - Special Immigrant-Based (EB-4) Adjustment, Part A - Secure Identity Documents Policies and Procedures, Volume 3 - Humanitarian Protection and Parole. Noncitizens must generally file motions to reopen within 30 days of the decision. You are 21 years and 4 months old when USCIS considers an immigrant visa available to you. 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. [^ 36] See Chapter 6, Adjudicative Review, Section C, Verify Visa Availability, Subsection 5, Visa Retrogression [7 USCIS-PM A.6(C)(5)]. [46], Actions an applicant might take prior to filing an adjustment application, such as contacting an attorney or organization about initiating the process for obtaining a visa that has become available or applying for permanent residence, are not equivalent to filing an application and do not fulfill the sought to acquire requirement. If you were under the age of 21 at the time of your parents interview, your age is frozen as of that date and you will not age out. See Matter of O. Vazquez (PDF), 25 I&N Dec. 817 (BIA 2012). [^ 41] See Chapter 3, Filing Instructions, Section B, Definition of Properly Filed [7 USCIS-PM A.3(B)]. For more information on CSPA age calculation, see Volume 7, Part A, Chapter 7, Part F, Section 2 of the USCIS Policy Manual. You are only eligible for CSPA if you are the beneficiary of a Form I-130, Petition for Alien Relative. If the applicants CSPA age is over 21 at the time of subsequent visa availability, the applicant is no longer eligible for CSPA coverage. [^ 28] See Section G, Sought to Acquire Requirement [7 USCIS-PM A.7(G)] for detailed information. The historical versions are provided for research and reference purposes only. 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. . U.S. Unmarried Son or Daughter of LPR (F2B) Becomes Unmarried Son or Daughter of U.S. Citizen (F1). Certain Preference Applicants Who Did Not Have an Adjustment Application Pending on the Effective Date. [31] In other words, the pending time is the period of time between the start of the DV Program registration period to the date of the DV Selection Letter. Seek or sought to acquire is used as shorthand in this chapter to refer to this requirement. This letter should also include your and your parents names and dates of birth and the receipt number for your Form I-130. A visa is continuously available for accepting and processing an application for adjustment of status for a 1-year period if, during each month of that year, the applicant has a priority date that is earlier than the date for their country and category on the chart in the DOS Visa Bulletin designated by USCIS for such month. [^ 6] The CSPA protects a derivative refugee from aging out prior to his or her refugee admission, but such protection is not needed at the adjustment stage because a derivative refugee does not need to remain the spouse or child of the principal refugee in order to adjust status under INA 209. 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, see Part F, Special Immigrant-Based (EB-4) Adjustment [7 USCIS-PM F]. 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. 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. A preference applicant whose visa became available on or after August 7, 2001 who did not seek to acquire within 1 year of such visa availability but who would have qualified for CSPA coverage had he or she applied, but for prior policy guidance concerning the CSPA effective date, may still apply for adjustment of status. [48] From the date of visa availability, family-sponsored and employment-based preference and DV adjustment applicants have 1 year in which to seek to acquire permanent resident status in order to qualify for CSPA coverage. However, USCIS may excuse the applicant from the requirement as an exercise of discretion if the applicant is able to establish that the failure to satisfy the sought to acquire requirement within 1 year was the result of extraordinary circumstances.[47]. The Child Status Protection Act, or CSPA, was enacted in 2002 in an effort to prevent certain children from aging out while they wait to immigrate on a family-based petition. 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. You become an immediate relative and will not age out. CSPA may also still apply to a preference applicant whose immigrant petition was approved prior to August 6, 2002, and who did not have an adjustment application pending on August 6, 2002, but who subsequently applied for adjustment and was denied solely for aging out. That is accomplished by filing certain documents within one year of visa availability. One year later, in December 2021, a visa once again becomes available to the derivative child based on the Dates for Filing chart, which USCIS has designated for use in that month, and the derivative child files an application for adjustment of status. In order to qualify as a stepchild, the marriage between your U.S. citizen stepparent and your K3 nonimmigrant parent must have occurred before your 18th birthday. B BigJoe5 Registered Users (C) Jul 26, 2011 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. [^ 45] Applicants may file the Form I-824 concurrently with the adjustment application. 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. U.S. The approval notice will also show you which office approved your Form I-130. If you have a pending adjustment application as a derivative child, and we grant the principal applicants request to transfer the underlying basis of their adjustment application to a different immigrant category based on another approvedpetition, then the date we receive the transfer request is the date we use to determine whether you meet the sought to acquire requirement. From the date of visa availability, and provided that the visa remains available for a continuous 1-year period, the applicant has 1 year to fulfill the sought to acquire requirement. CHILD CITIZENSHIP ACT (CCA) If an American Citizen files an immigration petition for a child that is about to reach the age of 18, NVC sends the case to Post with an EXPEDITED . It is meant to insure that sons and daughters can immigrate to the US together with their parents. U.S. NVC is asking us to pay IV Application Processing Fees on ceac.state.gov but it only displays names of my husband and I on ceac.state.gov. This content has been superseded by the current version available in the Guidance tab. [^ 7] See Section H, Summary of Child Status Protection Act Applicability [7 USCIS-PM A.7(H)] for a condensed guide to basic provisions for each category of CSPA-eligible immigrants. About Press Copyright Contact us Creators Advertise Press Copyright Contact us Creators Advertise CSPA may still apply for a preference applicant who did not have an adjustment application pending on August 6, 2002, and who did not timely seek to acquire. 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. [39] This requirement does not apply to refugee derivatives, asylee derivatives, and IRs.[40]. 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. For derivatives of widow(er)s, a childs age is frozen on the date the Form I-360 is filed or the spousal Form I-130 is automatically converted to a widow(er)s Form I-360 (in other words, the date of the petitioners death). 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. Applicants can determine when to file for adjustment of status by referring first to the USCIS Adjustment of Status Filing Charts from the Visa Bulletin webpage and then to the DOS Visa Bulletin. 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. Applicants who will follow to join the principal applicant later will be interviewed separately. 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. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. First, the date in the DOS Visa Bulletin for the prospective applicants country of chargeability and preference category may retrogress or move backwards. USCIS denied the adjustment application solely because the applicant had aged out. [^ 4] 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. See AFM 21.2(e) (PDF, 1.82 MB), The Child Status Protection Act of 2002. The historical versions linked below reflect the pertinent policy in effect on that date and dates reflect when updates occurred. The applicants mother filed a petition on the applicants behalf on February 1, 2016. The parent files an adjustment of status application based on the second Form I-140 and is approved. 3) Paid the fees and submitted all the forms. The NVC did its CSPA analysis when the priority date became current using Chart A, which was on Oct. 1, 2016. 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. Since the prospective applicant only had 4 months of time in which to seek to acquire during the initial period of availability, the prospective applicant has a full 1-year period beginning October 1, 2021, in which the prospective applicant may seek to acquire. The CSPA helps preserve the "under 21" age of many children who would otherwise have aged out under the prior law. An applicant is listed as a derivative on an approved Form I-140 filed by their parents employer. The Immigration and Nationality Act (INA) defines a child as a person who is both unmarried and under 21 years old. . (recent experience with CSPA). [3] CSPA does not alter this definition. On that date, the child was 21 years and five months. [^ 10] See Matter of Avila-Perez (PDF), 24 I&N Dec. 78 (BIA 2007).
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