Therefore, the applicants petition pending time is 6 months (or 182 days). 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. The NVC is not your "attorney", for free legal advice - Gurfinkel L. 106-386 (PDF) (October 28, 2000). The adjustment applicant must have had one of the following pending on or after the CSPAs effective date: a qualifying Refugee/Asylee Relative Petition (, The applicant must have been under the age of 21 and unmarried at the time the principal asylum applicants. [13], Similarly, the beneficiary of a pending or approved spousal Form I-130 may subsequently file a VAWA-based Form I-360. I would like an attorney to double check the CSPA age calculation and draft the letter with appropriate language. The applicant must be unmarried at the time he or she seeks adjustment of status. The historical versions linked below reflect the pertinent policy in effect on that date and dates reflect when updates occurred. On April 1, 2021, a visa is no longer available to the prospective applicant. The visa remains available to the prospective applicant through March 2021, that is, for a continuous 1-year period of visa availability. See INA 204(a)(1)(D)(i)(I) and INA 204(a)(1)(D)(i)(III). If the applicant was under the age of 21 at the time of filing, the applicant is eligible for CSPA and will not age out. Unfortunately, the CSPA requires that if a child is eligible, the child must "seek to acquire" a visa within one year. The applicant must have had a qualifying Registration for Classification as a Refugee (Form I-590) or Refugee/Asylee Relative Petition (. [^ 1] See Pub. [10], Certain Preference Applicants with No Adjustment Application Pending on the Effective Date. 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. Please see theFiling Feespage for more information. Yes. [49], Impact of Visa Unavailability on the 1-Year Sought to Acquire Requirement. To benefit from the CSPA age determination, applicant must seek to acquire lawful permanent residence within 1 year of the visa becoming available. 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. If you are a K-4 nonimmigrant, you are eligible for CSPA because you will apply for a Green Card as an immediate relative based on a Form I-130 filed by your U.S. citizen stepparent. Pending time includes administrative review, such as motions and appeals, but does not include consular returns. NVC may add a child to the fee bill if the child's CSPA age is under 21 on the first day of visa availability, or may defer to the consulate to make the decision to add a CSPA-age-adjusted child as a derivative. The CSPA age is calculated based on the new visa availability date of October 1, 2021 (not October 1, 2020), and locked in as of that date provided that the visa remains available and the applicant seeks to acquire during that 1-year period. Hi, Our case was approved 2 days after the childs 21 birthday. U.S. 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. The prospective applicant decides not to file for adjustment of status between March 1, 2020, and March 31, 2021. [^ 13] A child of a widow(er) who is ineligible to be included as a derivative may be eligible for consideration under INA 204(l) or humanitarian reinstatement under 8 CFR 205.1(a)(3)(i)(C)(2). 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. 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 second employer files a new Form I-140 for the parent, and the applicant is listed as a derivative on this second approved Form I-140. USCIS approved the petition on August 1, 2016. U.S. For information regarding implementation, see Appendix: 2020 Fee Rule Litigation Summary. Ineffective assistance of counsel, when certain requirements are met. National Visa Center (NVC) Immigrant Visa Backlog Report 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. To be CSPA qualified you must meet two criteria: Your "CSPA age" must be under 21 years old. USCIS denied the adjustment application solely because the applicant had aged out. [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. [^ 40] VAWA preference cases are subject to the sought to acquire requirement, but VAWA IRs are not. or NVC; pay the affidavit of support fee with the NVC; file the DS-260 . 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. The History tab was added to the USCIS Policy Manual on June 11, 2021, and provides historical versions on and after that date. The applicant must have had a qualifying petition. [^ 28] See Section G, Sought to Acquire Requirement [7 USCIS-PM A.7(G)] for detailed information. 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. Under these facts, the prospective applicant failed to seek to acquire permanent residence within 1 year of visa availability because the prospective applicant failed to apply for adjustment of status during the 1-year period between March 1, 2020, and March 1, 2021, when a visa was continuously available to file an adjustment of status application. The date the visa is considered available is the later of these 2 dates: For DVs, the date a visa is considered available for CSPA purposes is the first day on which the DOS can allocate a visa number based on the principal applicants rank number. CSPA Guide, Child Status Protection Act, CSPA Formula - Shusterman Law Such provisions and details regarding eligibility are described in the following subsections. 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. Instead, the filing date (receipt date) is the appropriate date. Adjustment applicants who fail to fulfill the sought to acquire requirement within 1 year of visa availability may still be able to benefit from CSPA if they can establish that their failure to meet the requirement was the result of extraordinary circumstances.[50]. He said we need to write a letter to tell them why we believe. Approval Date [^ 50] In Matter of O. Vazquez, the Board of Immigration Appeals (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. 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 important to note that this NVC-generated assessment letter will not hold up the qualification of the case for appointment at post. [^ 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). However, the derivative asylee may overcome this by providing evidence establishing the parent-child relationship, including evidence of the childs age, and a reasonable explanation as to why the derivative was not included on the principals Form I-589. 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. [^ 2] The situation in which noncitizens can no longer be classified as children for immigrant visa purposes due to turning 21 is commonly referred to as aging out.. A lock ( A locked padlock ) or https:// means you've safely connected to the .gov website. 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. CSPA age is frozen on the date the Form I-360 is filed or the date the Form I-130 is automatically converted to a widow(er)s Form I-360. . CSPA (Child Status Protection Act) Calculator. Commonplace circumstances, such as financial difficulty, minor medical conditions, and circumstances within the applicants control (such as when to seek counsel or begin preparing the application package), are not considered extraordinary. More Immigration US visas Immigrant visas Diversity immigrant visa (DV) derivatives; CSPA provisions vary based on the immigrant category of the applicant. When a lawful permanent resident (LPR) files a Form I-130, Petition for Alien Relative for his or her child or unmarried son or daughter, the petition is classified as a family second preference case. As per CSPA calculator, his CSPA age remains under 21 till November 2017. PDF application of the cspa to the children of u.s. citizen petitioners Your mother filed a petition for you on Feb.1, 2016. The CSPA went into effect on August 6, 2002. So my recent CEAC electronic submission story with new information about NVC and CPSA follows: 1) The USCIS approved petition was for a F2A (or F22 - unmarried child under 21 years) 2) NVC CEAC created the case with a F22 visa classification shown on the status page. [^ 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). This technical update clarifies thatcertain child beneficiaries of family-sponsored immigrant visa petitions who are ineligible for the Child Status Protection Act may continue their adjustment of status application if the petition is automatically converted to an eligible category. CSPA applies only to those applicants specified in the statute: Family-sponsored preference principals and derivatives; Violence Against Women Act (VAWA) self-petitioners and derivatives;[4], Employment-based preference derivatives;[5]. . CSPA (Child Status Protection Act) may allow some of those aged-out children to immigrate, depending upon various factors. If your LPR parent filed a Form I-130 for you as an unmarried son or daughter (second preference classification) and then your parent became a U.S. citizen, you normally would automatically convert to a first preference classification as the unmarried son or daughter of a U.S. citizen (F1). Adjustment applicants are eligible for CSPA consideration if either the qualifying application (Application to Register Permanent Residence or Adjust Status (Form I-485)) or one of the following underlying forms was filed or pending on or after the effective date: Petition for Alien Relative (Form I-130); Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360); Immigrant Petition for Alien Worker (Form I-140); Immigrant Petition by Standalone Investor (Form I-526); Immigrant Petition by Regional Center Investor (Form I-526E); Application for Asylum and for Withholding of Removal (Form I-589); Registration for Classification as a Refugee (Form I-590); or, Refugee/Asylee Relative Petition (Form I-730). Form I-526, Immigrant Petition by Alien Entrepreneur; Form I-589, Application for Asylum and for Withholding of Removal, Form I-730, Refugee/Asylee Relative Petition, Volume 7, Part A, Chapter 7, Part F, Section 2 of the USCIS Policy Manual, Form DS-260, Immigrant Visa Electronic Application, Form I-824, Application for Action on an Approved Application or Petition, Green Card for Fianc(e) of U.S. Citizen page, USCIS Policy Manual, Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 7, Child Status Protection Act. 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. Limited CSPA Coverage for K-4Nonimmigrants. Requesting NVC for IV fee invoice for child because case might apply CSPA On June 1, 2021, the visa becomes available again to the prospective applicant. Family-Sponsored Preference Principals and Derivatives (including VAWA)[54]. NVC | Interview Appointment - Mygcvisa 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. Secure .gov websites use HTTPS [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. [^ 17] The date a Form I-590 is considered filed is the date of the principal refugee parents interview with a USCIS officer. 3 USCIS-PM - Volume 3 - Humanitarian Protection and Parole, 4 USCIS-PM - Volume 4 - Refugees and Asylees. To find remaining AFM content, see the crosswalk (PDF, 350.49 KB)between the AFM and the Policy Manual. [^ 36] See Chapter 6, Adjudicative Review, Section C, Verify Visa Availability, Subsection 5, Visa Retrogression [7 USCIS-PM A.6(C)(5)]. Paying the immigrant visa fee to the DOS; For refugee and asylee adjustment of status (Green Card), see, For family and employment preference and Diversity Visa immigrants, see. This is referred to as the sought to acquire requirement. Unmarried Son or Daughter of LPR (F2B) Becomes Unmarried Son or Daughter of U.S. Citizen (F1). You become an immediate relative and will not age out. Citizenship and Immigration Services (USCIS) is revising its policy guidance in the USCIS Policy Manual to align with the Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements Final Rule, published in the Federal Register on August 3, 2020. The following table outlines immigrant categories covered by CSPA, methods by which CSPA age is calculated, whether the sought to acquire requirement applies, and references to legal authorities and additional guidance. 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. However, in December 2020, USCIS designates the Final Action Dates chart for use by prospective applicants in the employment-based preference categories. First, the date in the DOS Visa Bulletin for the prospective applicants country of chargeability and preference category may retrogress or move backwards. An applicant may only establish extraordinary circumstances due to ineffective assistance of counsel (the applicants legal representative or attorney) if he or she completes the following: The applicant must submit an affidavit explaining in detail the agreement that was entered into with counsel regarding the actions to be taken and what information, if any, counsel provided to the applicant regarding such actions; The applicant must demonstrate that he or she has made a good faith effort to inform counsel whose integrity or competence is being questioned of the allegations brought against him or her and that counsel has been given an opportunity to respond; and. Secure .gov websites use HTTPS CSPA applies only to the following people: If you are applying for a Green Card based on one of the categories above, you are eligible for CSPA consideration if either your qualifying Form I-485, Application to Register Permanent Residence or Adjust Status, or one of the following underlying forms was filed or pending on or after Aug.6, 2002: If you are a derivative refugee, your CSPA age is your age on the date your principal refugee parent or Form I-730 petitioner filed his or her I-590, which is the date of his or her interview with a USCIS officer. 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. In order for family-sponsored and employment-based preference and DV adjustment applicants to benefit from the CSPA age calculation, they must seek to acquire lawful permanent residence within 1 year of when a visa becomes available for accepting and processing a potential adjustment of status application. When your stepparent files a Form I-130 for you, you become an immediate relative who can use the CSPA when applying for a Green Card. See Matter of O. Vazquez (PDF), 25 I&N Dec. 817 (BIA 2012). 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. [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. The resulting age is known as the applicants CSPA age.. The approval notice will also show you which office approved your Form I-130. In this case, the age of the child will be frozen as of the date that the I-130 is received by the government. The priority date should not be used for purposes of determining CSPA eligibility. (CSPA) you can "opt out" of conversion to the F1 visa category and remain an F2B visa applicant . 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. Applicants who will follow to join the principal applicant later will be interviewed separately. The Child Status Protection Act - U.S. Embassy & Consulate in Vietnam A visa initially becomes available to the prospective applicant according to the Final Action Dates chart on March 1, 2020, which USCIS designated for use in that month. See INA 204(a)(1)(I). [^ 37] In order to qualify under CSPA, the applicant must also remain unmarried through final adjudication and must have sought to acquire lawful permanent residence within 1 year of visa availability. Appointment - United States Department of State Only the applicants who are listed on the interview appointment letter issued by the NVC must appear to be interviewed at the scheduled time. 6 USCIS-PM G.1 - Chapter 1 - Purpose and Background, 6 USCIS-PM G.2 - Chapter 2 - Eligibility Requirements, 7 USCIS-PM A.3 - Chapter 3 - Filing Instructions, 7 USCIS-PM A.6 - Chapter 6 - Adjudicative Review, 7 USCIS-PM B.2 - Chapter 2 - Eligibility Requirements, 7 USCIS-PM B.8 - Chapter 8 - Inapplicability of Bars to Adjustment. [^ 39] See INA 203(h)(1)(A). 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. [16], While the child must have been unmarried in order to qualify for refugee derivative status, he or she does not need to remain unmarried in order to adjust status under INA 209.[18]. * Child Status Protection Act Date Of Birth* Priority Date* Approval Date* Date when Petition Became Current * UNDERSTAND THE TERMS Priority Date It is the date when your Petition was filed. Note:Certain forms, including Form I-290B, have a filing fee. The delay was reasonable under the circumstances. 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. Child of LPR (F2A) Becomes Child of a U.S. Citizen (Immediate Relative). [45], USCIS also considers a written request to transfer the underlying basis of the adjustment of status application to satisfy the sought to acquire requirement if the request is received within 1 year of an immigrant visa becoming available in the new preference category. In order to include his or her child(ren) on the self-petition as derivatives, the child(ren) must be under the age of 21 and unmarried when the Form I-360 is filed, regardless of whether the child(ren) had a separate or approved Form I-130 when the Form I-360 was filed.[14]. 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. CSPA does not change the requirement that the applicant must be unmarried in order to remain eligible for classification as a child for immigration purposes. If a continuous 1-year period of visa availability elapsed and the applicant did not seek to acquire during the 1-year period, the applicant cannot benefit from the age-out protections of the CSPA. For more information about applying for a Green Card as a K-1 or K-2 nonimmigrant, see the Green Card for Fianc(e) of U.S. Citizen page. The Immigration and Nationality Act (INA) defines a child as a person who is both unmarried and under 21 years old. This guidance is effective immediately and applies to adjustment of status applications we adjudicate on or after Feb. 14, 2023. 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. You will receive instructions concerning interview preparation in the appointment letter that you will receive from the NVC. A previously filed Form I-824 that was denied because the principal applicant's adjustment application had not yet been approved may serve as evidence of having sought to acquire. See 9 FAM 502.1-1(D)(6), Sought to Acquire LPR Status Provision, for more information regarding how overseas applicants may satisfy the sought to acquire requirement in the consular processing context. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to incorporate changes resulting from the EB-5 Reform and Integrity Act of 2022. However, CSPA does not change the requirement that you must be unmarried in order to remain eligible for classification as a child. L. 106-386 (October 28, 2000). The length of time a petition was pending (pending time) is the number of days between the date that it is properly filed (filing date) and the approval date. 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. To create an account, you will need your passport. 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. When considering a claim of extraordinary circumstances, the officer should weigh the totality of the circumstances and the connection between the circumstances presented and the failure to meet the sought to acquire requirement within the 1-year period, as well as the reasonableness of the delay. [^ 24] See Section B, Child Status Protection Act Applicability [7 USCIS-PM A.7(B)] for more information on effective date.