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How the Child Status Protection Act Could Affect Immigrant Families
Contributor: Van T. Doan
The United States Immigration and Citizenship Services (USCIS) issued policy guidance on February 14, 2023 regarding when an immigrant visa “becomes available” for purposes of calculating a noncitizen child’s age under the Child Status Protection Act (CSPA). This represents a major policy change and will result in many more dependent children being eligible for protection under the CSPA.
What is the Child Status Protection Act?
The CSPA is a federal law that took effect on August 6, 2002 to prevent certain immigrant children from “aging out” of the process of getting a green card and becoming a lawful permanent resident (LPR) of the United States.
Under the Immigration and Nationality Act (INA), a “child” is defined as a person who is both unmarried and under the age of 21 years. Prior to the CSPA, many people who met these criteria applied for LPR status as a child, but turned 21 before their application was approved and a green card could be issued to them. In other words, they “aged out” of the process and in many cases needed to file a new petition or became ineligible for a green card altogether. This was happening often due to large USCIS processing backlogs.
While the CSPA did not change the definition of “child” under the INA, it did create a method to calculate a person’s age to determine if they meet the definition of “child” for purposes of immigration. The calculation is based on when an immigrant visa becomes available, pursuant to the Department of State’s Visa Bulletin. This “CSPA age” allows some noncitizens to still be classified as children even though they are over 21. Even under the CSPA, however, a noncitizen must be unmarried to be classified as a child.
The DOS Visa Bulletin contains two charts: “Dates for Filing” and “Final Action Date.” Prior to the issuance of the new policy guidance, USCIS considered a visa “available” based only on the Final Action Date chart.
How Does the New Policy Guidance Affect CSPA Age?
Under CSPA, the number of days a petition for LPR status is pending can be deducted from a noncitizen’s biological age at the time a visa “becomes available.” Some noncitizens in the United States were eligible to apply for adjustment of status using the earlier dates in the “Dates for Filing” chart, but had CSPA ages based on the “Final Action Date” chart, which was less advantageous to them. That changes with this update to the USCIS Policy Manual:
“CSPA applies to both noncitizens abroad who are applying for an immigrant visa through the Department of State (DOS) and noncitizens physically present in the United States who are applying for adjustment of status through USCIS. This chapter primarily focuses on the impact of CSPA on adjustment applicants, though the same principles generally apply to noncitizens seeking an immigrant visa through DOS.”
The change in policy will not keep all child applicants for a green card from aging out of the process. However, the new, more generous interpretation of when a visa “becomes available” will almost certainly reduce the number of cases in which a child ages out after applying for adjustment for status using the “Dates for Filing” chart.
Does the New Policy Guidance Help Applicants Whose Applications to Adjust Status Were Denied Due to Aging Out?
Applicants for adjustment of status whose applications were denied under the former policy may be able to have their cases reopened under the new policy guidance. It may make sense to file a motion to reopen a case if the original application was filed based on the more favorable “Dates for Filing” chart; if the application was denied because the application was denied due to “Final Action Date” chart calculations; and if the applicant’s CSPA age would have been under 21 using the new policy and the “Dates for Filing” chart.
The standard deadline for appealing a denial is typically 30 days after an adverse decision by USCIS. However, due to the recent policy guidance, USCIS is expected to accept motions to reopen applications to adjust status beyond this window.
In summary, the 2023 policy guidance on the Child Status Protection Act is favorable for foreign national children who might have aged out of the green card process under prior policy. However, it is still important not to delay seeking to acquire permanent resident status.
The services of an experienced immigration attorney can be invaluable in ensuring that the new guidance is properly followed and that applications to adjust status are complete and accurate. To learn more about the Child Status Protection Act and how the new policy guidance could affect your family, contact our law office as soon as possible.
Categories: Immigration Law