If you want to opt out of the automatic conversion, you must submit a written request to the USCIS office that approved your Form I-130. In most cases, you do not need a Form I-130 to get a Green Card if you are a K-2 nonimmigrant. However, you must remain unmarried in order to qualify. This is referred to as the sought to acquire requirement. At that point, USCIS would calculate CSPA age based on the derivatives age on December 1, 2021 (not October 1, 2020). CSPA does not change the definition of a child. 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. On June 1, 2021, the visa becomes available again to the prospective applicant. This technical update clarifies thatcertain child beneficiaries of family-sponsored immigrant visa petitions who are ineligible for the Child Status Protection Act may continue their adjustment of status application if the petition is automatically converted to an eligible category. If the petitioner naturalizes (becomes a U.S. citizen) before the child or unmarried son or daughter gets a Green Card, the petition is converted to either an immediate relative or family first preference case. For DVs, the qualifying petition is the DV Program electronic entry form. Thinking the NVC was acting on the case, the family sat back and waited for further word. In order for a family-sponsored or employment-based preference or DV applicant to qualify for CSPA, the applicant must meet the following requirements: For family-sponsored (including VAWA)[26] and employment-based preference and DV categories, an adjustment applicants CSPA age is calculated by subtracting the number of days the petition on which the applicant seeks to adjust status was pending (pending time) from the applicants age on the date the immigrant visa becomes available to the applicant (age at time of visa availability). Child of LPR (F2A) Becomes Child of a U.S. Citizen (Immediate Relative). In order to benefit from CSPA as a family preference (including VAWA self-petition), employment-based preference, or DV applicant, you must seek to acquire lawful permanent resident status within 1 year of when a visa becoming available to you for filing an adjustment of status application. [12] The widow(er)s child(ren), if any, must be under the age of 21 and unmarried at the time of the petitioners death to be classified as derivatives on the automatically converted Form I-360, regardless of whether the child(ren) had a separate pending or approved Form I-130 at the time of the petitioners death. You will need the ten (10) digit barcode number from your DS-260 confirmation page to book your appointments. Citizenship and Immigration Services (USCIS) is issuing policyguidance addressing the general policies and procedures of adjustment of status as well as adjustment under section 245(a) of the Immigration and Nationality Act (INA). The priority date should not be used for purposes of determining CSPA eligibility. U.S. More Immigration US visas Immigrant visas Certain provisions of the CSPA apply to some categories of immigrants but not others. A .gov website belongs to an official government organization in the United States. If you do not know which USCIS office approved your Form I-130, you may call our USCIS Contact Center. [39] This requirement does not apply to refugee derivatives, asylee derivatives, and IRs.[40]. Therefore, the applicants petition pending time is 6 months (or 182 days). As mentioned in the assessment letter, applicants should bring any completed joint-sponsor . The applicants CSPA age is calculated as follows: 21 years and 4 months - 6 months = 20 years and 10 months. [^ 36] See Chapter 6, Adjudicative Review, Section C, Verify Visa Availability, Subsection 5, Visa Retrogression [7 USCIS-PM A.6(C)(5)]. 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). 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. However, USCIS may excuse the applicant from the requirement as an exercise of discretion if the applicant is able to establish that the failure to satisfy the sought to acquire requirement within 1 year was the result of extraordinary circumstances.[47]. [^ 32] The rank number is the number following the two-letter region code and should correspond with cut-off numbers available in the DOS Visa Bulletin. You can find the receipt number on the receipt and approval notices. Paying the immigrant visa fee to the DOS; For refugee and asylee adjustment of status (Green Card), see, For family and employment preference and Diversity Visa immigrants, see. [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. 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. USCIS denied the adjustment application solely because the applicant had aged out. CSPA age is calculated by subtracting the number of days the petition was pending from the applicants age on the date an immigrant visa becomes available to the applicant. [19], CSPA applies differently to family-sponsored and employment-based preference and DV adjustment applicants than it does to refugee, asylee, and IR adjustment applicants. NVC is asking us to pay IV Application Processing Fees on ceac.state.gov but it only displays names of my husband and I on ceac.state.gov. Hi, Our case was approved 2 days after the childs 21 birthday. For more information, see Volume 7, Part A, Chapter 7, Part F, Section 2, of the USCIS Policy Manual. For purposes of adjustment of status of a derivative refugee, CSPA protection is not needed because a derivative refugee does not need to remain the child of the principal refugee in order to adjust status under INA 209. Officers should follow guidance in 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. U.S. I suggest you gather up the relevant documents (particularly the I-130 receipt and I-130 approval notice) and get a lawyer to send a letter to the NVC that demonstrates your CSPA calculation, asserts your eligibility to stay in F2A and urges them to forward your case to the consulate for final processing. In order to include his or her child(ren) on the self-petition as derivatives, the child(ren) must be under the age of 21 and unmarried when the Form I-360 is filed, regardless of whether the child(ren) had a separate or approved Form I-130 when the Form I-360 was filed.[14]. Secure .gov websites use HTTPS Looking for U.S. government information and services? 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. The petition had been pending for three months before it was approved, so that period of time can be subtracted from the child's age. The CSPA went into effect on August 6, 2002. If you are a K-4 nonimmigrant, you are eligible for CSPA because you will apply for a Green Card as an immediate relative based on a Form I-130 filed by your U.S. citizen stepparent. 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. Only the applicants who are listed on the interview appointment letter issued by the NVC must appear to be interviewed at the scheduled time. [^ 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)]. Pending time includes administrative review, such as motions and appeals, but does not include consular returns. Secure .gov websites use HTTPS [^ 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). Calculate your CSPA age as follows: 21 years and 4 months - 6 months = 20 years and 10 months. CSPA provides that the age of the child will be frozen in each of the following 3 circumstances: 1) If the US citizen parent submits an I-130 visa petition for a child prior to his or her 21st birthday. CSPA age is calculated by subtracting the number of days the Form I-130 (or Form I-360 for VAWA self-petitioners and derivatives) was pending from the applicants age on the date an immigrant visa becomes available to the applicant. 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]. Officers should follow guidance in 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. Generally, in order to qualify, the derivative refugee must be listed as a child on the principal applicants Form I-590 prior to a final decision. A lock ( A locked padlock ) or https:// means you've safely connected to the .gov website. Official websites use .gov The Immigration and Nationality Act (INA) defines a child as a person who is both unmarried and under 21 years old. The applicant must have had a qualifying Registration for Classification as a Refugee (Form I-590) or Refugee/Asylee Relative Petition (. If you are a family preference (including VAWA self-petition), employment-based preference, or diversity visa (DV) applicant, calculate your CSPA age by subtracting the number of days your petition was pending (pending time) from your age on the date an immigrant visa becomes available to you (age at time of visa availability). You should not have your exam until your interview has been scheduled. You may check the Visa Bulletinto see if opting out of automatic conversion may result in a shorter waiting time for you. If an eligible applicant filed an adjustment of status application but later a visa is not available for issuance based on the DOS Visa Bulletin Final Action Dates chart for the applicants priority date, country of chargeability, and visa category, USCIS holds the application until the visa becomes available for issuance and the application can be adjudicated. HOW TO RECAPTURE/RETAIN AND UTILIZE PRIORITY DATES 4 HOW TO RECAPTURE/RETAIN AND UTILIZE PRIORITY DATES | FEBRUARY 2022 Since the prospective applicant only had 4 months of time in which to seek to acquire during the initial period of availability, the prospective applicant has a full 1-year period beginning October 1, 2021, in which the prospective applicant may seek to acquire. CSPA (Child Status Protection Act) Calculator. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual to remove references to Biographic Information (Form G-325A). You must check the. Ineffective assistance of counsel, when certain requirements are met. 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. Under Section 424 of the USA PATRIOT Act, if a qualifying form was filed before September 11, 2001, then the applicant is afforded an additional 45 days of eligibility.[11]. [^ 10] See Matter of Avila-Perez (PDF), 24 I&N Dec. 78 (BIA 2007). U.S. Applicants who will follow to join the principal applicant later will be interviewed separately. 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. Since October 2015, the Visa Bulletin has featured two charts per immigrant preference category: USCIS designates one of the two charts for use by applicants each month. For more information about applying for a Green Card as a K-1 or K-2 nonimmigrant, see the Green Card for Fianc(e) of U.S. Citizen page. A visa subsequently becomes available again on October 1, 2021, based on the Dates for Filing chart, which USCIS has designated for use in that month. See INA 209(a)(1). This content has been superseded by the current version available in the Guidance tab. To find remaining AFM content, see the crosswalk (PDF, 350.49 KB)between the AFM and the Policy Manual. For more information about K-1 and K-2 nonimmigrant visas, see the Fianc(e) Visas page. A previously filed Form I-824 that was denied because the principal applicant's adjustment application had not yet been approved may serve as evidence of having sought to acquire. See 9 FAM 502.1-1(D)(6), Sought to Acquire LPR Status Provision, for more information regarding how overseas applicants may satisfy the sought to acquire requirement in the consular processing context. The length of time a petition was pending (pending time) is the number of days between the date that it is properly filed (filing date) and the approval date. Immediate relatives(including derivatives of widow(er)s); Family-sponsored preference principal applicants and derivative applicants; Violence Against Women Act (VAWA) self-petitioners and derivative applicants; Employment-based preference derivative applicants; Diversity Immigrant Visa (DV) derivative applicants; Form I-590, Registration for Classification as a Refugee; or, The first day of the month of when USCIS considers a visa available for filing an adjustment of status application based on your immigrant preference category, country of chargeability, and priority date. [^ 24] See Section B, Child Status Protection Act Applicability [7 USCIS-PM A.7(B)] for more information on effective date. [^ 17] The date a Form I-590 is considered filed is the date of the principal refugee parents interview with a USCIS officer. 7 USCIS-PM A.7 - Chapter 7 - Child Status Protection Act. [^ 8] For information about the impact of CSPA on applicants for an immigrant visa, see 9 FAM 502.1-1(D), Child Status Protection Act. National Visa Center (NVC) Immigrant Visa Backlog Report Last updated February 2023 Since March 2020, the COVID-19 pandemic has dramatically affected the Department of State's ability to process immigrant visa applications. [^ 27] For CSPA purposes, the age at time of visa availability is the applicants age when USCIS considers the applicants visa available. Looking for U.S. government information and services? [^ 35] USCIS typically designates one of the two charts within 1 week of the publication of the DOS Visa Bulletin. 5 There are exceptions to this rule for VAWA self -petitioners, and qualifying self petitioning widow(er)s of U.S. citizens. The applicant must be unmarried at the time he or she seeks adjustment of status. [^ 5] Eligible derivatives of special immigrants are covered by CSPA as their immigrant visas fall under the employment-based fourth preference visa category. VAWA self-petitioners and derivatives who do not qualify for CSPA may qualify for age-out relief under VTPVA. For information regarding implementation, see Appendix: 2020 Fee Rule Litigation Summary. The following table outlines immigrant categories covered by CSPA, methods by which CSPA age is calculated, whether the sought to acquire requirement applies, and references to legal authorities and additional guidance. See AFM 21.2(e) (PDF, 1.82 MB), The Child Status Protection Act of 2002. CSPA allows children who turn 21 years old after an asylum application is filed but prior to adjudication to continue to be classified as children and remain eligible for derivative asylum status and adjustment of status. Furthermore, the fact of being or having been a child is common to all applicants seeking protection under the CSPA and does not constitute extraordinary circumstances. [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]. The CSPA age is calculated based on the new visa availability date of October 1, 2021 (not October 1, 2020), and locked in as of that date provided that the visa remains available and the applicant seeks to acquire during that 1-year period. See 9 FAM 502.6-4, Diversity Visa Processing. Congress recognized that many children were aging out due to large USCIS processing backlogs, so it enacted the Child Status Protection Act (CSPA) to protect certain children from aging out. The approval notice will also show you which office approved your Form I-130. An applicant is listed as a derivative on an approved Form I-140 filed by their parents employer. 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. [^ 28] See Section G, Sought to Acquire Requirement [7 USCIS-PM A.7(G)] for detailed information. Adjustment applicants are eligible for CSPA consideration if either the qualifying application (Application to Register Permanent Residence or Adjust Status (Form I-485)) or one of the following underlying forms was filed or pending on or after the effective date: Petition for Alien Relative (Form I-130); Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360); Immigrant Petition for Alien Worker (Form I-140); Immigrant Petition by Standalone Investor (Form I-526); Immigrant Petition by Regional Center Investor (Form I-526E); Application for Asylum and for Withholding of Removal (Form I-589); Registration for Classification as a Refugee (Form I-590); or, Refugee/Asylee Relative Petition (Form I-730). [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. Since your age freezes on the date the Form I-130 is filed, you benefit from the CSPA as long as your stepparent files the Form I-130 before your 21st birthday. [^ 44] See 9 FAM 502.1-1(D)(6)(a)(3), Sought to Acquire LPR Status Provision. U.S. [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. Adjustment applicants who fail to fulfill the sought to acquire requirement within 1 year of visa availability may still be able to benefit from CSPA if they can establish that their failure to meet the requirement was the result of extraordinary circumstances.[50]. 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. 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. As it takes a long time to get Greencard in many categories, many dependent children may age-out while waiting and are no longer be eligible as dependents to get a green card. For derivatives of widow(er)s, a childs age is frozen on the date the Form I-360 is filed or the spousal Form I-130 is automatically converted to a widow(er)s Form I-360 (in other words, the date of the petitioners death). Officers should review the USCIS Adjustment of Status Filing Charts from the Visa Bulletin webpage to determine whether the applicant had a prior 1-year period of visa availability to file for adjustment of status. Applicants can determine when to file for adjustment of status by referring first to the USCIS Adjustment of Status Filing Charts from the Visa Bulletin webpage and then to the DOS Visa Bulletin. 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]. Limited CSPA Coverage for K-2 Nonimmigrants. When your stepparent files a Form I-130 for you, you become an immediate relative who can use the CSPA when applying for a Green Card. [10], Certain Preference Applicants with No Adjustment Application Pending on the Effective 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. 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. See Part M, Asylee Adjustment, Chapter 2, Eligibility Requirements, Section C, Derivative Asylee Continues to be the Spouse of Child of the Principal Asylee, Subsection 2, Derivative Asylees Ineligible for Adjustment of Status [7 USCIS-PM M.2 (C)(2)]. For more information on K-4 visas, see the K-3/K-4 Nonimmigrant Visas page. 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. [^ 29] A transfer request potentially affects the CSPA age calculation for the derivative beneficiaries. If you were under the age of 21 at the time your parent filed Form I-589, your age is frozen as of that date and you will not age out. Transferring to a new basis will result in a new calculated CSPA age, as the amount of time the petition was pending will change as will the derivative beneficiarys age at the time of visa availability. [^ 40] VAWA preference cases are subject to the sought to acquire requirement, but VAWA IRs are not. The adjustment applicant must have had one of the following pending on or after the CSPAs effective date: a qualifying Refugee/Asylee Relative Petition (, The applicant must have been under the age of 21 and unmarried at the time the principal asylum applicants. Instead, the filing date (receipt date) is the appropriate date. However, a transfer of underlying basis request can also result in potential derivative beneficiaries become eligible to adjust status as a derivative because their calculated CSPA age based on the petition is under 21 years of age. . L. 107-208 (PDF) - Child Status Protection Act, G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, I-140,Immigrant Petition for Alien Worker, I-360, Petition for Amerasian, Widow(er), or Special Immigrant, I-485, Application to Register Permanent Residence or Adjust Status, I-526, Immigrant Petition by Standalone Investor, I-589, Application for Asylum or Withholding of Removal, How to Use the USCIS Policy Manual Website (PDF, 2.99 MB). CSPA does not change the requirement that the applicant must be unmarried in order to remain eligible for classification as a child for immigration purposes. The applicants calculated CSPA age must be under 21 years old; The applicant must have sought to acquire lawful permanent residence within 1 year of visa availability, absent extraordinary circumstances. L. 107-208 (PDF) (August 6, 2002). The CSPA does not solve the problem of "age outs" for all children of LPRs and other derivative beneficiaries. Review our. CHILD CITIZENSHIP ACT (CCA) If an American Citizen files an immigration petition for a child that is about to reach the age of 18, NVC sends the case to Post with an EXPEDITED . If an applicant has multiple approved petitions, the applicants CSPA age is calculated using the petition that forms the underlying basis for the adjustment of status application. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to incorporate changes resulting from the EB-5 Reform and Integrity Act of 2022. See Section G, Sought to Acquire Requirement [7 USCIS-PM A.7(G)]. [48] From the date of visa availability, family-sponsored and employment-based preference and DV adjustment applicants have 1 year in which to seek to acquire permanent resident status in order to qualify for CSPA coverage. [^ 46] If a derivative child has a pending adjustment application and USCIS approves the principal applicants request to transfer the underlying basis of their adjustment application to a different immigrant category based on another approved petition, then the date that the transfer request is received by USCIS is the date used to determine whether the derivative child met the sought to acquire requirement. 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]. The widow(er)s children, if any, who are under the age of 21 and unmarried at the time of the petitioners death can be classified as derivatives on the automatically converted Form I-360 and therefore qualify for the CSPA. [^ 52] This includes Form I-730 beneficiaries. To create an account, you will need your passport. Collect all the supporting documents and fill out DS-260 (include your child's name on DS-260). Child Status Protection Act (CSPA) Alert: On Feb. 14, 2023, USCIS issued policy guidance in the USCIS Policy Manual to update when an immigrant visa "becomes available" for the purpose of calculating Child Status Protection Act (CSPA) age for noncitizens seeking lawful permanent resident status in a preference category. * Child Status Protection Act Date Of Birth* Priority Date* Approval Date* Date when Petition Became Current * UNDERSTAND THE TERMS Priority Date It is the date when your Petition was filed.
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