It is important to note that while USCIS designates one of the charts for use by applicants each month for accepting and processing adjustment of status applications, the Final Action Dates chart always governs when a visa is authorized for issuance to an applicant. You may check the Visa Bulletinto see if opting out of automatic conversion may result in a shorter waiting time for you. Citizenship and Immigration Services (USCIS) is issuing 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 in certain situations. 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. 1 USCIS-PM B - Part B - Submission of Benefit Requests, 7 USCIS-PM A - Part A - Adjustment of Status Policies and Procedures, 7 USCIS-PM F - Part F - Special Immigrant-Based (EB-4) Adjustment, 7 USCIS-PM M - Part M - Asylee Adjustment, 11 USCIS-PM A - Part A - Secure Identity Documents Policies and Procedures. When considering a claim of extraordinary circumstances, the officer should weigh the totality of the circumstances and the connection between the circumstances presented and the failure to meet the sought to acquire requirement within the 1-year period, as well as the reasonableness of the delay. It is meant to insure that sons and daughters can immigrate to the US together with their parents. 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. [^ 48] For DVs, the date a visa is considered available is the first day on which the principal applicants rank number is current for visa processing. 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]. [^ 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. If the applicant does not seek to acquire within 1 year of visa availability although the visa was available for a continuous 1-year period, the applicant cannot benefit from the age-out protections of the CSPA. However, CSPA does not change the requirement that you must be unmarried in order to remain eligible for classification as a child. Further, the CSPA provisions pertaining to preference immigrants, including petitions by LPR parents, the are most complex part of this law (in comparison, the CSPA's application to children of U.S. citizens is much more [^ 35] USCIS typically designates one of the two charts within 1 week of the publication of the DOS Visa Bulletin. . For family and employment-based preference adjustment applicants, 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)[30] and the approval date. The applicant already had a continuous 1-year period in which to seek to acquire. See AFM 21.2(e) (PDF, 1.82 MB), The Child Status Protection Act of 2002. [15], CSPA allows children who turn 21 years old after a refugee application is filed but prior to adjudication to continue to be classified as children and remain eligible for derivative refugee status. In these circumstances, you are not eligible for and do not need CSPA in order to get a Green Card. See INA 209(a)(1). 6 USCIS-PM G.1 - Chapter 1 - Purpose and Background, 6 USCIS-PM G.2 - Chapter 2 - Eligibility Requirements, 7 USCIS-PM A.3 - Chapter 3 - Filing Instructions, 7 USCIS-PM A.6 - Chapter 6 - Adjudicative Review, 7 USCIS-PM B.2 - Chapter 2 - Eligibility Requirements, 7 USCIS-PM B.8 - Chapter 8 - Inapplicability of Bars to Adjustment. At that point, USCIS would calculate CSPA age based on the derivatives age on December 1, 2021 (not October 1, 2020). You will need the ten (10) digit barcode number from your DS-260 confirmation page to book your appointments. However, you may choose to opt out of the automatic conversion and stay in second preference classification (F2B) if the waiting time for the second preference visa is shorter than the waiting time for the first preference visa. [^ 38] There are two ways in which a visa may become unavailable for accepting and processing an adjustment of status application. How can I request NVC to consider my son's CSPA age and grant him immigrant visa as well? It helps lock in the age and preserve the "child" status of both immediate relatives and those in the preference categories. For more information on K-4 visas, see the K-3/K-4 Nonimmigrant Visas page. CSPA (Child Status Protection Act) Calculator. When a lawful permanent resident (LPR) files a Form I-130, Petition for Alien Relative for his or her child or unmarried son or daughter, the petition is classified as a family second preference case. However, USCIS considers untimely motions to reopen for denials issued after the Matter of O. Vazquez precedent (June 8, 2012), but only if the denial was based solely on the adjustment applicants failure to seek to acquire within 1 year. Applicants must file the Notice of Appeal or Motion (Form I-290B) with the proper fee and should present their claim that the finding in Matter of O. Vazquez constitutes changed circumstances justifying the reopening of the adjustment application. L. 106-386 (October 28, 2000). 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]. I would like an attorney to double check the CSPA age calculation and draft the letter with appropriate language. [^ 9] Pending time may also include administrative review, such as motions and appeals, but does not include consular returns. [^ 11] See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. Here are the details: * The child is studying in the U.S. His parents acquired permanent residency in 2011 and applied for an I-130 for him in 2011 when he was approx. Official websites use .gov . You should not have your exam until your interview has been scheduled. See 9 FAM 502.6-4, Diversity Visa Processing. The applicants age is frozen on the date of the refugee parents interview. Under these facts, the prospective applicant failed to seek to acquire permanent residence within 1 year of visa availability because the prospective applicant failed to apply for adjustment of status during the 1-year period between March 1, 2020, and March 1, 2021, when a visa was continuously available to file an adjustment of status application. Officers consider new evidence of extraordinary circumstances submitted with the motion to reopen, consistent with the guidance in this section. [32], Determining When an Applicant May File an Adjustment Application and When a Visa is Available for the CSPA Age Calculation. 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). Unlike derivative refugees, you must be unmarried in order to qualify for a grant of derivative asylum and to qualify for a Green Card under INA section 209. The DOS Visa Bulletin contains a clear warning to applicants to consult with the USCIS website for guidance on whether to use the Dates for Filing chart or Final Action Dates chart. For more information about K-1 and K-2 nonimmigrant visas, see the Fianc(e) Visas page. For information regarding implementation, see Appendix: 2020 Fee Rule Litigation Summary. As a K-2 nonimmigrant (child of a K-1 nonimmigrant who is the fianc(e) of a U.S. citizen), you typically get a Green Card based on your admission into the U.S. with a K-2 visa and your K-1 parents marriage to the U.S. citizen petitioner within 90 days of being admitted to the U.S. As long as you were under 21 when you were admitted to the United States as a K-2 nonimmigrant, you will not age out of eligibility for a Green Card. 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. To create an account, you will need your passport. Ineffective assistance of counsel, when certain requirements are met. Unfortunately, the CSPA requires that if a child is eligible, the child must "seek to acquire" a visa within one year. CSPA went into effect on August 6, 2002. U.S. For derivative asylees, an adjustment applicants CSPA age is his or her age on the date the principal applicants Form I-589 is filed. For DVs, the qualifying petition is the DV Program electronic entry form. Denials that were based on the failure to seek to acquire and issued prior to the decision in Matter of O. Vazquez[51] were proper based on the law in effect at the time of the decision. 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. If a visa initially becomes available and then becomes unavailable[38] for accepting and processing an adjustment of status application before the potential adjustment applicant has filed an application, the applicants CSPA age is not locked in. The applicants CSPA age is calculated using the approved petition that forms the new basis of the adjustment of status application.[29]. [^ 26] In addition to CSPA protections, VAWA self-petitioners and derivatives who turn 21 prior to adjusting status may be eligible for age-out protections provided in the Victims of Trafficking and Violence Protection Act (VTPVA) of 2000, Pub. CSPA CALCULATOR Fill in the fields below for CSPA Calculator * Fields with *are required fields. [^ 23] Qualifying underlying forms include Petition for Alien Relative (Form I-130); Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360);Immigrant Petition for Alien Workers (Form I-140); Immigrant Petition by Standalone Investor (Form I-526); and Immigrant Petition by Regional Center Investor (Form I-526E). You (not your parent) should send a signed letter stating that you wish to opt out of the conversion from F2B to F1. [^ 30] While the priority date is often the same as the filing date (also referred to as the receipt date), there are instances in which the priority date is not the same, such as in employment-based cases based on the filing of a labor certification. The core purpose of the Child Status Protection Act (CSPA)[1] was to alleviate the hardships faced by certain noncitizens who were previously classified as children for immigrant visa purposes, but who, due to the time required to adjudicate petitions, had turned 21 years old and consequently became ineligible to receive such immigrant visas. First, the date in the DOS Visa Bulletin for the prospective applicants country of chargeability and preference category may retrogress or move backwards. Motions to Reopen Following Matter of O. Vazquez. [^ 17] The date a Form I-590 is considered filed is the date of the principal refugee parents interview with a USCIS officer. CSPA age is frozen on the date the principal asylee parents Form I-589 is filed. The derivative may be eligible to retain the priority date from the first Form I-140, but the CSPA calculation uses the second petition, because this is the petition through which the principal beneficiary obtained adjustment of status and that forms the basis for the applicants adjustment of status application. Yes. The applicant is 21 years and 4 months old when USCIS considers an immigrant visa available. 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. [10], Certain Preference Applicants with No Adjustment Application Pending on the Effective Date. If you were under the age of 21 at the time of your parents interview, your age is frozen as of that date and you will not age out. [^ 41] See Chapter 3, Filing Instructions, Section B, Definition of Properly Filed [7 USCIS-PM A.3(B)]. [^ 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)]. (CSPA), visa applicants can "opt out" of conversion to the F1 visa category and remain an F2B visa applicant. See9 FAM 502.6-4, Diversity Visa Processing. 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). Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual regarding the Child Status Protection Act (CSPA), to include how USCIS calculates age under certain contexts and what actions satisfy the sought to acquire requirement. If you are a derivative asylee, your CSPA age is your age on the date your principal asylee parent or Form I-730 petitioner filed his or her Form I-589. In order to warrant a favorable exercise of discretion, the circumstances must truly be extraordinary and beyond the adjustment applicants control. [49], Impact of Visa Unavailability on the 1-Year Sought to Acquire Requirement. HOW TO RECAPTURE/RETAIN AND UTILIZE PRIORITY DATES 4 HOW TO RECAPTURE/RETAIN AND UTILIZE PRIORITY DATES | FEBRUARY 2022 Review our. Depending on the facts of the particular case, a derivative beneficiary may become ineligible to adjust status as a derivative as a result of a transfer request because their new calculated CSPA age is no longer under 21 years of age. 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. U.S. 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. Pending time includes administrative review, such as motions and appeals, but does not include consular returns. The applicants CSPA age is calculated as follows: 21 years and 4 months - 6 months = 20 years and 10 months. 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. 7 USCIS-PM B - Part B - 245(a) Adjustment, 7 USCIS-PM L - Part L - Refugee Adjustment. [3] CSPA does not alter this definition. 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. 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. [21] Furthermore, the applicants eligibility depends not only on the CSPA age calculation but also on whether the applicant sought to acquire lawful permanent residence within 1 year of visa availability.[22]. CSPA does not change the definition of a child. The applicant must have had a qualifying Registration for Classification as a Refugee (Form I-590) or Refugee/Asylee Relative Petition (. Official websites use .gov [^ 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. 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. So, both you and your brother do qualify for CSPA, you need to write a letter to NVC stating that you and your brother may qualify for CSPA status so please review the situation, Once NVC reviews the case, they will send invoice for you and your brother. 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]. If someone applies for lawful permanent resident (LPR) status as a child but turns 21 before being approved for LPR status (also known as getting a Green Card), that person can no longer be considered a child for immigration purposes. 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. Hello there, Congratulations, you and your brother both qualify for CSPA, what you should do is when you send supporting documents for your parents to the NVC, send a letter to the NVC with your and your brother's name, date of birth and ask NVC to review the file since you may qualify for CSPA. 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. For IRs and IR self-petitioners or derivatives under VAWA, a childs age is frozen on the date the Form I-130 or Form I-360 is filed, respectively. However, the derivative asylee 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-589. In other words, the applicants age is frozen on the date the Form I-589 is filed. In this case, the age of the child will be frozen as of the date that the I-130 is received by the government. 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. You must submit the correct filing fee for each form unless you are exempt or eligible for a fee waiver. Form I-526, Immigrant Petition by Alien Entrepreneur; Form I-589, Application for Asylum and for Withholding of Removal, Form I-730, Refugee/Asylee Relative Petition, Volume 7, Part A, Chapter 7, Part F, Section 2 of the USCIS Policy Manual, Form DS-260, Immigrant Visa Electronic Application, Form I-824, Application for Action on an Approved Application or Petition, Green Card for Fianc(e) of U.S. Citizen page, USCIS Policy Manual, Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 7, Child Status Protection Act. Please see theFiling Feespage for more information. As per CSPA calculator, his CSPA age remains under 21 till November 2017. U.S. [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. [^ 39] See INA 203(h)(1)(A). CSPA (Child Status Protection Act) may allow some of those aged-out children to immigrate, depending upon various factors. [34] DOS publishes a new Visa Bulletin on a monthly basis. [^ 53] For more detailed guidance on CSPA applicability and VAWA, see INA 204(a)(1)(D)(i) and 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.