[^ 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. U.S. 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. U.S. The applicants mother filed a petition on the applicants behalf on February 1, 2016. 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. On that date, the child was 21 years and five months. [35] Applicants must check the USCIS Adjustment of Status Filing Charts from the Visa Bulletin webpage to see which chart to use in determining when they may file adjustment of status applications. 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. A .gov website belongs to an official government organization in the United States. [^ 39] See INA 203(h)(1)(A). In order to calculate an adjustment applicants CSPA age according to the formula above, the officer must first determine the age at time of visa availability. See Section G, Sought to Acquire Requirement [7 USCIS-PM A.7(G)] for detailed information. [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. You must check the. 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. [13], Similarly, the beneficiary of a pending or approved spousal Form I-130 may subsequently file a VAWA-based Form I-360. 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. [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. 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. [^ 5] Eligible derivatives of special immigrants are covered by CSPA as their immigrant visas fall under the employment-based fourth preference visa category. Yes. 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. 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 Chapter 9, Death of Petitioner or Principal Beneficiary [7 USCIS-PM A.9] for more information. A visa initially becomes available to the prospective applicant according to the Dates for Filing chart on October 1, 2020, which USCIS has designated for use in that month. [^ 40] VAWA preference cases are subject to the sought to acquire requirement, but VAWA IRs are not. Diversity immigrant visa (DV) derivatives; CSPA provisions vary based on the immigrant category of the applicant. 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. 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. APPLICATION OF THE CHILD STATUS PROTECTION ACT TO THE CHILDREN OF U.S. CITIZEN PETITIONERS 2 APPLICATION OF THE CSPA TO THE CHILDREN OF U.S. CITIZEN PETITIONERS | DECEMBER 2018 B. Child's Age Frozen on the Date of the Parent's Naturalization The CSPA also amended Section 201 of the INA to provide that if a permanent resident parent who had filed a visa Official websites use .gov The DV Program registration period began on October 1, 2012, and the DV Selection Letter is dated May 1, 2013. See Subsection 4, Determining Age at Time of Visa Availability [7 USCIS-PM A.7(F)(4)]. Looking for U.S. government information and services? DV applicants also use the DOS Visa Bulletin to determine visa availability. [^ 52] This includes Form I-730 beneficiaries. 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. Unlike derivative refugees, you must be unmarried in order to qualify for a grant of derivative asylum and to qualify for a Green Card under INA section 209. (recent experience with CSPA). This also applies to circumstances when USCIS approves a request to transfer the underlying basis of a pending adjustment of status application to a different immigrant category based on another approved petition. [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]. Example: Visa Becomes Unavailable Before Filing. [^ 22] See INA 203(h)(1)(A). As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. The applicant also files an adjustment of status application based on the second Form I-140. [^ 41] See Chapter 3, Filing Instructions, Section B, Definition of Properly Filed [7 USCIS-PM A.3(B)]. 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. 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. However, CSPA does not change the requirement that you must be unmarried in order to remain eligible for classification as a child. [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. [^ 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.. 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. L. 106-386 (October 28, 2000). 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)]. 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 . In most cases, you do not need a Form I-130 to get a Green Card if you are a K-2 nonimmigrant. Please see theFiling Feespage for more information. 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. . Ineffective assistance of counsel, when certain requirements are met. For more information, see Part F, Special Immigrant-Based (EB-4) Adjustment [7 USCIS-PM F]. The approval notice will also show you which office approved your Form I-130. [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. 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. For DVs, the qualifying petition is the DV Program electronic entry form. 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). 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. Certain provisions of the CSPA apply to some categories of immigrants but not others. Fortunately, her PD is current that month too. To find remaining AFM content, see the crosswalk (PDF, 350.49 KB)between the AFM and the Policy Manual. The Immigration and Nationality Act (INA) defines a child as a person who is both unmarried and under 21 years old. About Press Copyright Contact us Creators Advertise Press Copyright Contact us Creators Advertise USCIS denied the adjustment application solely because the applicant had aged out. Your mother filed a petition for you on Feb.1, 2016. Instead, CSPA provides a method for calculating a persons age to see if they meet the definition of a child for immigration purposes. [3] CSPA does not alter this definition. 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. [^ 35] USCIS typically designates one of the two charts within 1 week of the publication of the DOS Visa Bulletin. If we transfer your underlying basis, calculate your CSPA age using your age at the time your immigrant visa becomes available, minus the time the petition that forms the new basis of your adjustment of status application was pending. See Matter of O. Vazquez (PDF), 25 I&N Dec. 817 (BIA 2012). Quote Tweet #9 01-15-2003, 12:35 AM Hello Everybody, Regarding "Child Status protection act" (CSPA) On "Retention of priorty of date" in F4- F3 categories. (CSPA) you can "opt out" of conversion to the F1 visa category and remain an F2B visa applicant . See AFM 21.2(e) (PDF, 1.82 MB), The Child Status Protection Act of 2002. 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. However, you must remain unmarried in order to qualify. 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. While you must be unmarried to qualify for admission into the U.S. as a derivative refugee, you do not need to remain unmarried in order to qualify for a Green Card under INA section 209. Looking for U.S. government information and services? 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]. 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. For family and employment-based preference adjustment applicants, 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)[30] and the approval date. Under Section 424 of the USA PATRIOT Act, if a qualifying form was filed before September 11, 2001, then the applicant is afforded an additional 45 days of eligibility.[11]. The CSPA went into effect on August 6, 2002. [32], Determining When an Applicant May File an Adjustment Application and When a Visa is Available for the CSPA Age Calculation. You will need the ten (10) digit barcode number from your DS-260 confirmation page to book your appointments. However, we called NVC and was told that she was moved to F2B. This may be beneficial because . 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. If you do not know which USCIS office approved your Form I-130, you may call our USCIS Contact Center. See INA 209(a)(1). So, both you and your brother do qualify for CSPA, you need to write a letter to NVC stating that you and your brother may qualify for CSPA status so please review the situation, Once NVC reviews the case, they will send invoice for you and your brother. [^ 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. If you think, you are eligible under CSPA then you must write letters to NVC, Consulate and INS claiming your eligibility to speed up processing on your file. It is meant to insure that sons and daughters can immigrate to the US together with their parents. You are only eligible for CSPA if you are the beneficiary of a Form I-130, Petition for Alien Relative. 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. Citizenship and Immigration Services (USCIS) is issuing policyguidance addressing the general policies and procedures of adjustment of status as well as adjustment under section 245(a) of the Immigration and Nationality Act (INA). That is accomplished by filing certain documents within one year of visa availability. CSPA (Child Status Protection Act) Calculator. The date a Form I-590 is considered filed is the date of the principal refugee parents interview with a USCIS officer. [^ 11] See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. The visa remains available to the prospective applicant through March 2021, that is, for a continuous 1-year period of visa availability. On April 1, 2021, a visa is no longer available to the prospective applicant. 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. [^ 47] For more information, see Subsection 3, Extraordinary Circumstances [7 USCIS-PM A.7(G)(3)]. [^ 27] For CSPA purposes, the age at time of visa availability is the applicants age when USCIS considers the applicants visa available. [^ 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. 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. Based on the CSPA rule, she should be still qualified for F2A. [^ 1] See Pub. Family-Sponsored Preference Principals and Derivatives (including VAWA)[54]. [^ 20] See Section C, Immediate Relatives [7 USCIS-PM A.7(C)], Section D, Derivative Asylees [7 USCIS-PM A.7(D)], and Section E, Derivative Refugees [7 USCIS-PM A.7(E)]. The applicants CSPA age is calculated using the approved petition that forms the new basis of the adjustment of status application.[29]. [^ 24] See Section B, Child Status Protection Act Applicability [7 USCIS-PM A.7(B)] for more information on effective date. 21 years 9 months old. L. 107-208 (PDF) (August 6, 2002). 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. See Matter of O. Vazquez (PDF), 25 I&N Dec. 817 (BIA 2012). 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. 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. As per CSPA calculator, his CSPA age remains under 21 till November 2017. The delay was reasonable under the circumstances. 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. 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. 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. The resulting age is known as the applicants CSPA age.. 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. However, if your stepparent and your K-1 nonimmigrant parent did not marry within 90 days (a requirement for getting a Green Card based on K-1 and K-2 nonimmigrant status), your stepparent might choose to file a Form I-130 for you. Your petition was pending for 6 months. The NVC did its CSPA analysis when the priority date became current using Chart A, which was on Oct. 1, 2016. The applicants underlying petition was pending for 6 months. For more information on CSPA age calculation, see Volume 7, Part A, Chapter 7, Part F, Section 2 of the USCIS Policy Manual. If the visa does not remain continuously available for accepting and processing the application, and becomes unavailable again, the period starts anew once the visa becomes available again. The applicant already had a continuous 1-year period in which to seek to acquire. See9 FAM 502.6-4, Diversity Visa Processing. 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. How can I request NVC to consider my son's CSPA age and grant him immigrant visa as well? In order for a family-sponsored or employment-based preference or DV applicant to qualify for CSPA, the applicant must meet the following requirements: For family-sponsored (including VAWA)[26] and employment-based preference and DV categories, an adjustment applicants CSPA age is calculated by subtracting the number of days the petition on which the applicant seeks to adjust status was pending (pending time) from the applicants age on the date the immigrant visa becomes available to the applicant (age at time of visa availability). Generally, in order to establish eligibility, a derivative asylee must have been listed on the principal applicants Form I-589 prior to a final decision on the principals asylum application. 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. Child Status Protection Act (CSPA) 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. In these circumstances, you are not eligible for and do not need CSPA in order to get a Green Card. Unfortunately, the CSPA requires that if a child is eligible, the child must "seek to acquire" a visa within one year. In September 2015, DOS and USCIS announced a revision to the Visa Bulletin, which created two charts of dates. This technical update replaces all instances of the term alien with noncitizen or other appropriate terms throughout the Policy Manual where possible, as used to refer to a person who meets the definition provided in INA 101(a)(3) [any person not a citizen or national of the United States]. If the petitioner naturalizes (becomes a U.S. citizen) before the child or unmarried son or daughter gets a Green Card, the petition is converted to either an immediate relative or family first preference case. 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. 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. For more information, see Volume 7, Part A, Chapter 7, Part F, Section 2, of the USCIS Policy Manual. However, in December 2020, USCIS designates the Final Action Dates chart for use by prospective applicants in the employment-based preference categories. Child of LPR (F2A) Becomes Child of a U.S. Citizen (Immediate Relative). August 1, 2016 - February 1, 2016 = 6 months (or 182 days). 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. 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. Since your age freezes on the date the Form I-130 is filed, you benefit from the CSPA as long as your stepparent files the Form I-130 before your 21st birthday. The DV Program registration period began on Oct. 1, 2012, and the DV selection Letter is dated May 1, 2013. You should not have your exam until your interview has been scheduled. Such provisions and details regarding eligibility are described in the following subsections. 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. A lock ( A locked padlock ) or https:// means you've safely connected to the .gov website. 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. To benefit from the CSPA age determination, applicant must seek to acquire lawful permanent residence within 1 year of the visa becoming available. 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. Step 2: Creating A User Account and Scheduling Your Visa Appointment Go to www.ustraveldocs.com/pk/ and create a user account. If someone applies for lawful permanent resident (LPR) status as a child but turns 21 before being approved for LPR status (also known as getting a Green Card), that person can no longer be considered a child for immigration purposes. [^ 48] 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. Examples of extraordinary circumstances that may warrant a favorable exercise of discretion include, but are not limited to: Serious illness or mental or physical disability of the applicant during the 1-year period; Legal disability, such as instances where the adjustment applicant suffered from a mental impairment, during the 1-year period; Instances where a timely adjustment application was rejected by USCIS as improperly filed and was returned to the applicant for corrections where the deficiency was corrected and the application re-filed within a reasonable period thereafter; Death or serious illness or incapacity of the applicants attorney or legal representative or a member of the applicants immediate family; and. U.S. 7 USCIS-PM A.7 - Chapter 7 - Child Status Protection Act. Instead, the filing date (receipt date) is the appropriate date. This guidance is effective immediately and applies to adjustment of status applications we adjudicate on or after Feb. 14, 2023. U.S. 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. This letter should also include your and your parents names and dates of birth and the receipt number for your Form I-130. This content has been superseded by the current version available in the Guidance tab. 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. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual to remove references to Biographic Information (Form G-325A). 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. [^ 28] See Section G, Sought to Acquire Requirement [7 USCIS-PM A.7(G)] for detailed information. [34] DOS publishes a new Visa Bulletin on a monthly basis. Limited CSPA Coverage for K-2 Nonimmigrants. 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). Further, the CSPA provisions pertaining to preference immigrants, including petitions by LPR parents, the are most complex part of this law (in comparison, the CSPA's application to children of U.S. citizens is much more [^ 10] See Matter of Avila-Perez (PDF), 24 I&N Dec. 78 (BIA 2007).
