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. CSPA Guide, Child Status Protection Act, CSPA Formula - Shusterman Law 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. 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. 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. [^ 54] For more detailed guidance on CSPA applicability and VAWA, see INA 204(a)(1)(D)(i) and 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. NVC will send another invoice for both of your child once the visa date/priority date confirmed that they are qualified for CSPA. 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 DV Program registration period began on Oct. 1, 2012, and the DV selection Letter is dated May 1, 2013. As mentioned in the assessment letter, applicants should bring any completed joint-sponsor . The Immigration and Nationality Act (INA) defines a child as a person who is both unmarried and under 21 years old. The History tab was added to the USCIS Policy Manual on June 11, 2021, and provides historical versions on and after that date. 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. See INA 204(a)(1)(D)(i)(I) and INA 204(a)(1)(D)(i)(III). 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. [3] CSPA does not alter this definition. [27] The formula for calculating CSPA age is as follows: Age at time of visa availability - Pending time = CSPA Age, While an applicant must file an adjustment application or otherwise seek lawful permanent resident status in order to benefit from CSPA, the date the applicant files an adjustment application is not relevant for the CSPA age calculation.[28]. This letter should also include your and your parents names and dates of birth and the receipt number for your Form I-130. L. 107-56 (PDF), 115 Stat. [^ 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). However, the derivative refugee 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-590. 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. 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. The historical versions are provided for research and reference purposes only. [^ 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 DOS Visa Bulletin contains a clear warning to applicants to consult with the USCIS website for guidance on whether to use the Dates for Filing chart or Final Action Dates chart. Seek or sought to acquire is used as shorthand in this chapter to refer to this requirement. In these circumstances, you are not eligible for and do not need CSPA in order to get a Green Card. On June 1, 2021, the visa becomes available again to the prospective applicant. This content has been superseded by the current version available in the Guidance tab. 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]. In order to protect children from aging out of their cases at age 21, CSPA may extend the eligibility of the applicant, should the applicant meet the CSPA requirements. This situation is commonly referred to as aging out and often means that these applicants would have to file a new petition or application, wait even longer to get a Green Card, or may no longer be eligible for a Green Card. If the prospective applicant has a priority date in their country of chargeability and preference category that is later than the Final Action Date, then a visa is no longer available to them for accepting and processing their application during the given month. [^ 42] Submitting a Form DS-260 that covers only the principal applicant does not meet the sought to acquire requirement for a derivative child. HOW TO RECAPTURE/RETAIN AND UTILIZE PRIORITY DATES 4 HOW TO RECAPTURE/RETAIN AND UTILIZE PRIORITY DATES | FEBRUARY 2022 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. 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. 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]. Therefore, the applicants CSPA age is under 21. Unfortunately, the CSPA requires that if a child is eligible, the child must "seek to acquire" a visa within one year. Motions to Reopen Following Matter of O. Vazquez. You will need the ten (10) digit barcode number from your DS-260 confirmation page to book your appointments. 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. It is meant to insure that sons and daughters can immigrate to the US together with their parents. This page was not helpful because the content: Green Card for Employment-Based Immigrants, Green Card for Family Preference Immigrants, Green Card for an Immediate Relative of a U.S. Citizen, Fiscal Year 2023 Employment-Based Adjustment of Status FAQs, Adjustment of Status Filing Charts from the Visa Bulletin, While Your Green Card Application Is Pending with USCIS, International Travel as a Permanent Resident, Rights and Responsibilities of a Permanent Resident, Volume 7, Part A, Chapter 7, Part F, Section 2, of the USCIS Policy Manual, Form I-485, Application to Register Permanent Residence or Adjust Status, Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, Form I-140, Immigrant Petition for Alien Worker. U.S. The Child Status Protection Act - U.S. Embassy & Consulate in Vietnam Even though visas are available to a principal applicant and derivative child based on their priority date and country of chargeability in both October and November, the derivative child does not apply for adjustment of status in October or November (while the principal does apply). 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. While K nonimmigrants are not covered under CSPA, K-2 and K-4 nonimmigrants may benefit from CSPA under certain limited circumstances. [^ 53] For more detailed guidance on CSPA applicability and VAWA, see INA 204(a)(1)(D)(i) and 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. Instead, CSPA provides methods for calculating an applicants age for immigrant visa purposes. However, you must remain unmarried in order to qualify. On that date, the child was 21 years and five months. Depending on the facts of the particular case, a derivative beneficiary may become ineligible to adjust status as a derivative as a result of a transfer request because their new calculated CSPA age is no longer under 21 years of age. [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. Yes. In order to warrant a favorable exercise of discretion, the circumstances must truly be extraordinary and beyond the adjustment applicants control. However, CSPA does not change the requirement that you must be unmarried in order to remain eligible for classification as a child. Pending time includes administrative review, such as motions and appeals, but does not include consular returns. Based on the CSPA rule, she should be still qualified for F2A. USCIS approved the petition on August 1, 2016. CSPA letter to NVC required - VisaJourney USCIS denied the adjustment application solely because the applicant had aged out. [9], CSPA does not apply to adjustment applications that were subject to a final determination prior to the effective date. 1 USCIS-PM B - Part B - Submission of Benefit Requests, 7 USCIS-PM A - Part A - Adjustment of Status Policies and Procedures, 7 USCIS-PM F - Part F - Special Immigrant-Based (EB-4) Adjustment, 7 USCIS-PM M - Part M - Asylee Adjustment, 11 USCIS-PM A - Part A - Secure Identity Documents Policies and Procedures. PDF Cspa and Children of Lprs and Other Derivative Beneficiaries - Ilrc 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. National Visa Center (NVC) Immigrant Visa Backlog Report The CSPA age associated with the petition does not change after the filing of the adjustment of status application and is frozen through the final adjudication, regardless of when a visa is authorized for issuance based on the Final Action Dates chart.[37]. Apply for a U.S. Visa | Expedited/ Age Out/ Follow-T0-Join Cases Legal Authorities and Additional Guidance, CSPA age is frozen on the date the principal refugee parents Form I-590 is filed (the date of the parents interview with USCIS). 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)]. 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. NVC accepted CPSA protection before priority date became current CSPA does not change the definition of a child. [^ 39] See INA 203(h)(1)(A). L. 107-208 (PDF) (August 6, 2002). However, if the qualifying underlying form was approved prior to the effective date, an applicant who applies for adjustment of status after the effective date may still qualify for CSPA coverage. USCIS employees should not rely on the historical versions for current laws, precedent decisions, policies, directives, guidance, and procedures. You are 21 years and 4 months old when USCIS considers an immigrant visa available to you. [^ 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. 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. NVC | Interview Appointment - Mygcvisa If the petitioner of a pending or approved immediate relative spousal petition dies, their spouses Form I-130 automatically converts to a widow(er)s Form I-360. [^ 11] See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. [^ 40] VAWA preference cases are subject to the sought to acquire requirement, but VAWA IRs are not. Example: Visa Becomes Unavailable Before Filing. The visa remains available to the prospective applicant for accepting and processing their application according to the Dates for Filing chart (designated by USCIS) for 4 months, that is, through the end of January 2021. For IRs and IR self-petitioners or derivatives under VAWA, a childs age is frozen on the date the Form I-130 or Form I-360 is filed, respectively. In October 2020, USCIS designates the Dates for Filing chart of the DOS Visa Bulletin for use to apply for adjustment of status in the employment-based preference categories. [36], The applicants CSPA age is determined based on how long the applicants underlying petition was pending and the applicants age when a visa became available to the applicant or the petition is approved, whichever is later. [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]. . [^ 41] See Chapter 3, Filing Instructions, Section B, Definition of Properly Filed [7 USCIS-PM A.3(B)]. 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. You should not have your exam until your interview has been scheduled. CSPA age is frozen on the date the Form I-130 is filed (or the Form I-360 is filed for VAWA self-petitioners and derivatives). See Section G, Sought to Acquire Requirement [7 USCIS-PM A.7(G)]. [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. The derivative child does not have an available visa based on the Final Action Dates chart in December 2020, and cannot apply during that month. See Matter of O. Vazquez (PDF), 25 I&N Dec. 817 (BIA 2012). 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. 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. [^ 51] In Matter of O. Vazquez, the 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. Only the applicants who are listed on the interview appointment letter issued by the NVC must appear to be interviewed at the scheduled time. The applicant already had a continuous 1-year period in which to seek to acquire.
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