How the New Policy Affects “Aging Out” of the Program and Visa Availability.
Since Feb. 14, 2023, the United States Citizenship and Immigration Services (USCIS) has updated its official Policy Manual to change the way it calculates the age of eligible individuals for immigration to the United States under the Child Status Protection Act (CSPA).
The change adapts the 2002 policy passed by U.S. Congress to protect children from “aging out” of their immigration petition to update guidance on when immigrant visas are “available” for these individuals.
Current CSPA policy dictates that if a child turned 21 years old and “aged out” ahead of the approval of their parents’ corresponding immigration petition for a family-sponsored or employment-based visa, that child would no longer be eligible to immigrate to the United States as a part of their parents’ respective petition.
The new Child Status Protection Act policy change adds further clarification to when visa numbers for eligible individuals covered by the CSPA become “available,” which was formerly determined by the Department of State’s Visa Bulletin. This bulletin contains two relevant and contradictory charts – the Dates for Filing chart and the Final Action Date chart – for calculating CSPA age, though previous Child Status Protection Act guidance only considered a visa “available” for calculating CSPA age exclusively by the Final Action Date chart, regardless of if the noncitizen was eligible to apply for an adjustment of status using the Dates for Filing chart or not.
Considering the USCIS recently demonstrated backlog, many children once-eligible under the CSPA had already “aged out” of the program by the time their parent’s application was ready for review by the USCIS.
Now, the updated CSPA guidance says the USCIS will use the Dates for Filing chart to calculate the age for immigrant visa eligibility under their parents’ green card applications, so long as it has determined that “there are more immigrant visas available for a fiscal year than there are known applicants for such visas,” which should provide additional security and clarity for eligible applicants aiming to adjust their immigration status in the United States.
The immediate enforcement of this policy also means that dependent children who are included in a pending application with USCIS under the Child Status Protection Act will now be reviewed using the Dates for Filing chart instead of the Final Action Date chart.
Those who were denied their immigration petition under the previous policy will be eligible to file a motion to reopen their claim using the Notice of Appeal or Motion, Form I-290B.
However, it should be noted that the guideline update will not apply to each individual nor will it stop all children from “aging out” before a visa is made available to them, and USCIS retains the right to announce that applicants must use the Final Action Dates chart on their application based on visa availability.
Overall, the new USCIS changes to the CSPA age calculation policy are intended to help ensure that families can remain together during the immigration process, and to provide greater clarity and consistency in the way that age is calculated for immigration purposes. For further insight on your eligibility under the new CSPA policy, contact a legal advisor for additional guidance.