Murthy Snapshot: Impact of Interfiling on a Child’s CSPA Eligibility

On March 11, 2024, the U.S. Department of State (DOS) released the April 2024 Visa Bulletin. For India and China, EB3 remains ahead of EB2 on the final action date chart, which may lead to increased interest in transferring the underlying basis of a pending adjustment of status application (form I-485) from EB2 to EB3 (commonly, referred to as “interfiling”).

In addition to other common interfiling issues addressed in the MurthyDotCom NewsBrief, FAQs on Interfiling at the I-485 Adjustment of Status Stage (23.Feb.2022), an individual should consider the potential impact of interfiling on a derivative child’s ability to benefit from the Child Status Protection Act (CSPA). Here are some key points you need to know:

• Interfiling allows an individual to replace the form I-140, immigrant petition for alien worker, underlying a pending I-485 application with another I-140.
• The CSPA protects certain children from “aging out” of a parent’s I-140 by applying a formula that can treat a child as being under the age of 21 for purposes of enjoying an immigration benefit, even though the child’s biological age is actually 21 years or older, as explained in the MurthyDotCom NewsBrief, Child Status Protection Act Basics Part 1 (18.Dec.2019). The U.S. Citizenship and Immigration Services (USCIS) also provided expanded eligibility under the CSPA, as discussed in the MurthyDotCom NewsBrief, USCIS to Consider CSPA Age Calculation Policy Change as Extraordinary Circumstance (14.Sep.2023).
• If an individual has multiple approved I-140 petitions, then a derivative child’s CSPA calculation will be based on the I-140 which forms the basis of a parent’s I-485 application.
• Interfiling an I-140 petition and transferring the basis of a pending I-485 to a different I-140 will result in a new CSPA calculation for a derivative child based on the newly interfiled I-140, which potentially could impact the child’s ability to benefit from the CSPA.

Your Takeaway

Interfiling has many possible benefits, but it is important to consider all ramifications that can result from taking any such action. As each case is different, an individual considering interfiling should seek the legal counsel of attorneys who are knowledgeable and experienced prior to taking any such action. This is especially true when a parent is seeking to ensure a child does not lose out the immeasurable benefits of obtaining a green card. The Murthy Law Firm has been successful in many cases of this type and our attorneys are available to consult on interfiling options.

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