Risk of Interfiling on a Child’s CSPA Eligibility

Each month, in anticipation of the release of the U.S. Department of State (DOS) Visa Bulletin, many individuals with pending applications for adjustment of status consider whether to transfer the underlying basis of a pending adjustment of status application, commonly known as “interfiling,” as explained in the MurthyDotCom InfoArticle, FAQs on Interfiling at the I-485 Adjustment of Status Stage (23.Feb.2022). For individuals born in India and China, EB3 priority dates sometimes advance ahead of EB2, and vice versa. This fluctuation has led to increased interest in interfiling to switch the category of a pending form I-485 from one employment-based preference to another. However, if the individual is a parent with dependent children included in the application, the primary applicant must consider the risks interfiling poses for a child’s ability to benefit from the parent’s green card process.

Background on the Child Status Protection Act

The Child Status Protection Act (CSPA) protects certain children from “aging out” of a parent’s I-140 petition 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 InfoArticle, Child Status Protection Act Basics Part 1 (18.Dec.2019).

Interfiling and the CSPA

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. If an individual has multiple approved I-140 petitions, then a derivative child’s CSPA calculation will be based on the I-140 which most recently forms the basis of a parent’s I-485 application.

When an individual interfiles a new I-140 petition into a pending I-485 application, it is a request for the U.S. Citizenship and Immigration Services (USCIS) to transfer the basis of their I-485 application to a different I-140, which in turn results in the USCIS making a new CSPA calculation for all derivative children included in the application. The USCIS will then view the interfiling as if the child just filed their I-485 application. This means that even if the child was protected under the CSPA when they initially filed the application, the interfiling can result in the child losing CSPA protection if the new I-140 petition is not favorable for a CSPA analysis. USCIS may deny the derivative child’s I-485 application while the parents and other family members receive their green cards.

Conclusion

Interfiling has many possible benefits, but it could have a dire consequence for your child. As each case is different, an individual considering interfiling should seek the legal counsel of attorneys who are knowledgeable and experienced in advising on CSPA issues prior to taking any such action. This is essential when a parent is seeking to ensure a child does not lose out on 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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