USCIS Expands Eligibility Under the Child Status Protection Act

On February 14, 2023, the U.S. Citizenship and Immigration Service (USCIS) issued updated guidance in the USCIS Policy Manual that significantly improves the protections offered by the Child Status Protection Act (CSPA). Per the new guidance, in certain circumstances, CSPA age determinations may be based on the more favorable dates-for-filing chart (Chart B), rather than the final-action chart (Chart A). This should result in far fewer children “aging out” of eligibility for their green cards as derivative (i.e., dependent) beneficiaries of their parents’ immigrant petitions (e.g., form I-130, form I-140).

CSPA Overview

The CSPA uses a formula to help determine when an individual is a child for eligibility under the parent’s immigrant petition. The CSPA treats certain individuals as being under the age of 21 for purposes of enjoying immigration benefits, even though the individual’s biological age is actually 21 years or older. The goal of the CSPA is to provide relief to children who otherwise would age out of eligibility for a green card as a derivative beneficiary of a parent.

The CSPA temporarily freezes a child’s age when a visa number becomes available. It calculates the “CSPA age” by taking the child’s actual age on either the date when the priority date for the green card case became “current,” or the date of the approval of the underlying immigrant petition, whichever is later. The CSPA allows for subtracting the number of days that the immigrant petition was pending with the USCIS. If the CSPA age results in the individual being under 21 years old, that individual is eligible for derivative benefits.

For example, a child is 17 years old when an I-130 immigrant petition is filed for a parent. That petition remains pending for two years and is approved when the child is 19 years old. The child’s priority date becomes current three years later when the child’s actual age is 22. However, because the petition was pending for two years, the child’s CSPA age is only 20 at the time of visa availability, and the child may apply for lawful permanent residency.

Policy Now Allows Use of Chart B

Based on guidance issued in May 2018, in calculating the CSPA age of a derivative child with a pending I-485 application, the USCIS has been exclusively using the cutoff dates listed in Chart A, which are normally less favorable than Chart B. Per the updated USCIS guidance of February 2023, if a prospective applicant is permitted to use the cutoff dates in Chart B when filing an adjustment of status application, then the USCIS will use Chart B in calculating the applicant’s CSPA age.

The following example illustrates the new policy’s effect. A child is 17 years old when the employer files the parent’s I-140 petition. That I-140 petition remains pending for 14 months, before it is approved. On the child’s 22nd birthday, the priority date becomes current on Chart B, and the child files her I-485 application, as permitted that month by the USCIS. At the time of filing the I-485, her CSPA age is 20 years, 10 months.

Under the old policy, at the time of filing the I-485 application, the child would not have known for certain whether she eventually would age out. But, unless the cutoff dates on Chart A advanced significantly over the following two months, CSPA would not have sufficiently protected her. Assuming she did age out, she also would have been impacted financially, having wasted money on the I-485 government filing fees for a case that eventually would be denied through no fault of her own.

Under the new policy, however, because the I-485 applicant’s CSPA age was under 21 years at the time her I-485 application was filed, she is no longer at risk of aging out. Not only does this policy change protect more children from aging out, it also provides more certainty and efficiency in the immigration process, with the child knowing at the time of filing the I-485 application that she is no longer at risk of aging out.

New Policy is Effective Immediately and Retroactive

Not only is the new USCIS policy effective immediately, it even applies retroactively if certain conditions are met. The new policy covers any qualifying child with a new or pending I-485 application. If a child’s I-485 application was previously denied based solely on the basis of having aged out, and that child would not have aged out based on this new policy change, the applicant can file a motion to reopen with the USCIS. In announcing the policy change, the USCIS noted that, while a motion typically must be filed within 30 days of a decision, the USCIS has discretion to excuse the untimely filing of the motion if the delay was reasonable and was beyond the child’s control.

Conclusion

This new USCIS policy promotes family unity and reduces some of the uncertainty related to children potentially aging out during the immigration process. However, it is not yet clear whether this policy change will be implemented for persons applying for immigrant visas at a U.S. consulate, as opposed to applying to adjust status within the United States. This would require the U.S. Department of State to make appropriate modifications to the Foreign Affairs Manual (FAM) which governs procedures at U.S. consulates. In general, the CSPA is equally applicable to both procedures, so there is a strong argument that this should occur.

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