USCIS to Consider CSPA Age Calculation Policy Change as Extraordinary Circumstance

The U.S. Citizenship and Immigration Services (USCIS) has updated the USCIS Policy Manual with additional guidance that expands the extraordinary circumstances exception to the Child Status Protection Act’s (CSPA) “sought to acquire” requirement. This update stems from a February 14, 2023, policy update that expanded eligibility for CSPA protections.

Background on CSPA

The CSPA uses a formula to help determine when an individual over the age of 21 is still considered a “child” for purposes of eligibility as a dependent under a parent’s green card case. 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. Under the CSPA, a child’s age is calculated by looking at the actual age on the date that the priority date for the green card case became current, or the date on which the underlying immigrant petition was approved, whichever is later, and subtracting the number of days that the petition was pending. More details on the CSPA are available in the MurthyDotCom NewsBrief, Child Status Protection Act Basics Part 1 and Part 2. The goal of the CSPA is to provide relief to children who otherwise would age out of eligibility for the green card as derivative beneficiaries of their respective parent.

Update Related to Beneficial February 2023 Memo

As discussed in the MurthyDotCom NewsBrief, USCIS Expands Eligibility Under the Child Status Protection Act (27.Feb.2023), the USCIS issued a memorandum on February 14, 2023, that changed USCIS policy to allow, in certain circumstances, CSPA age determinations to be based on the more favorable dates-for-filing chart (Chart B), rather than the final-action chart (Chart A). This latest update to the Policy Manual discusses possible immigration relief options for certain children who aged out prior to the February 2023 policy change.

CSPA’s Sought-to-Acquire Requirement

The CSPA requires that a derivative child with a CSPA age of under 21 years old must have “sought to acquire” status as a lawful permanent resident (i.e., applied for adjustment of status or an immigrant visa) within one year of the priority date on the parent’s petition becoming current. A child who does not meet this requirement generally cannot benefit from the CSPA’s protection.

In some cases, though, the USCIS may excuse a child’s failure to seek LPR status within the standard one-year limit if the delay was directly caused by extraordinary circumstances beyond the child’s control. Examples of extraordinary circumstances include a serious illness or disability of the child, death or incapacity of a child’s immediate family member or legal representative, or if the USCIS rejects a timely filed application for adjustment of status.

Extraordinary Circumstances Now Includes CSPA Age Calculation Policy Change

As noted above, a February 2023 USCIS update altered how a child’s age is calculated under the CSPA in certain situations, allowing more children to qualify. However, that update did not cover dependent children who aged out under the prior rule, and whose priority dates became current more than a year prior to the February 14, 2023, policy change. To remedy this, the USCIS now considers the February 14, 2023, policy update to be an extraordinary circumstance beyond the child’s control and may excuse the child’s inability to have met the sought-to-acquire requirement if the delay is otherwise reasonable.

Conclusion

The CSPA promotes family unity and reduces the risk of a child aging out of a parent’s immigrant petition. The expansion of the extraordinary circumstance exception is a welcome policy change and offers new hope to many children seeking permanent residency in the United States.

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