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. A visa initially becomes available to the prospective applicant according to the Dates for Filing chart on October 1, 2020, which USCIS has designated for use in that month. Officers consider new evidence of extraordinary circumstances submitted with the motion to reopen, consistent with the guidance in this section. If you are an immediate relative, a VAWA self-petitioning abused spouse or child of a U.S. citizen, or a derivative child of a VAWA self-petitioning abused spouse or child of a U.S. citizen, your age is frozen on the date the Form I-130 or Form I-360 is filed. L. 107-56 (PDF), 115 Stat. In most cases, you do not need a Form I-130 to get a Green Card if you are a K-2 nonimmigrant. 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. This content has been superseded by the current version available in the Guidance tab. The CSPA went into effect on August 6, 2002. 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. The resulting age is known as the applicants CSPA age.. In this case, the age of the child will be frozen as of the date that the I-130 is received by the government. August 1, 2016 - February 1, 2016 = 6 months (or 182 days). CSPA Guide, Child Status Protection Act, CSPA Formula - Shusterman Law See Matter of O. Vazquez (PDF), 25 I&N Dec. 817 (BIA 2012). Hi, Our case was approved 2 days after the childs 21 birthday. Your petition was pending for 6 months. The calculated age is the childs CSPA age. This allows some people to remain classified as children beyond their 21st birthday. On April 1, 2021, a visa is no longer available to the prospective applicant. However, CSPA does not change the requirement that you must be unmarried in order to remain eligible for classification as a child. Secure .gov websites use HTTPS Please see theFiling Feespage for more information. To find remaining AFM content, see the crosswalk (PDF, 350.49 KB)between the AFM and the Policy Manual. PDF how to recapture/retain and utilize priority dates | February 2022 - ILRC 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. Commonplace circumstances, such as financial difficulty, minor medical conditions, and circumstances within the applicants control (such as when to seek counsel or begin preparing the application package), are not considered extraordinary. 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. CSPA (Child Status Protection Act) may allow some of those aged-out children to immigrate, depending upon various factors. This is referred to as the sought to acquire requirement. PDF application of the cspa to the children of u.s. citizen petitioners PDF National Visa Center / AILA DOS Liaison Committee Meeting November 3 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. CSPA age is frozen on the date the Form I-130 is filed (or the Form I-360 is filed for VAWA self-petitioners and derivatives). 3) Paid the fees and submitted all the forms. (CSPA) you can "opt out" of conversion to the F1 visa category and remain an F2B visa applicant . This guidance becomes effective October 2, 2020. USCIS denied the adjustment application solely because the applicant had aged out. 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. The date a Form I-590 is considered filed is the date of the principal refugee parents interview with a USCIS officer. If the applicant was under the age of 21 at the time of filing, the applicant is eligible for CSPA and will not age out. Examples of extraordinary circumstances that may warrant a favorable exercise of discretion include, but are not limited to: Serious illness or mental or physical disability of the applicant during the 1-year period; Legal disability, such as instances where the adjustment applicant suffered from a mental impairment, during the 1-year period; Instances where a timely adjustment application was rejected by USCIS as improperly filed and was returned to the applicant for corrections where the deficiency was corrected and the application re-filed within a reasonable period thereafter; Death or serious illness or incapacity of the applicants attorney or legal representative or a member of the applicants immediate family; and. 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. 21 years 9 months old. CSPA (Child Status Protection Act) Calculator - Immihelp 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. The priority date should not be used for purposes of determining CSPA eligibility. You will receive instructions concerning interview preparation in the appointment letter that you will receive from the NVC. 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]. See Matter of O. Vazquez (PDF), 25 I&N Dec. 817 (BIA 2012). [16], While the child must have been unmarried in order to qualify for refugee derivative status, he or she does not need to remain unmarried in order to adjust status under INA 209.[18]. Limited CSPA Coverage for K-2 Nonimmigrants. U.S. In order to qualify as a stepchild, the marriage between your U.S. citizen stepparent and your K1 nonimmigrant parent must have occurred before your 18th birthday. CSPA may still apply for a preference applicant who did not have an adjustment application pending on August 6, 2002, and who did not timely seek to acquire. You will be notified once a decision is reached. 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. 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. Appointment - United States Department of State [^ 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. [^ 4] 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. The formula determining the length of time the petition was pending is as follows: Approval Date - Filing Date = Pending Time. 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. 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. Thinking the NVC was acting on the case, the family sat back and waited for further word. [^ 33] For more information, see Chapter 3, Filing Instructions, Section B, Definition of Properly Filed, Subsection 4, Visa Availability Requirement [7 USCIS-PM A.3(B)(4)] and Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)]. D on Lch Visa (Lch Phng Vn) v Lch M H S (6 Bc NVC) thng [^ 24] See Section B, Child Status Protection Act Applicability [7 USCIS-PM A.7(B)] for more information on effective date. For more information, see Part F, Special Immigrant-Based (EB-4) Adjustment [7 USCIS-PM F]. * Got USCIS receipt notice on April 08, 2011. (CSPA), visa applicants can "opt out" of conversion to the F1 visa category and remain an F2B visa applicant. The applicant must have been under the age of 21 and unmarried at the time the qualifying Form I-590 was filed. VAWA self-petitioners and derivatives who do not qualify for CSPA may qualify for age-out relief under VTPVA. 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). [^ 40] VAWA preference cases are subject to the sought to acquire requirement, but VAWA IRs are not. That is accomplished by filing certain documents within one year of visa availability. 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. See INA 204(a)(1)(D)(i)(III). 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. CSPA (Child Status Protection Act) Calculator. [^ 29] A transfer request potentially affects the CSPA age calculation for the derivative beneficiaries. 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. Once a Processing Complete Letter has been issued, NVC "closes" the file and places it in a queue for future use. The visa remains available to the prospective applicant for accepting and processing their application according to the Dates for Filing chart (designated by USCIS) for 4 months, that is, through the end of January 2021. If a VAWA self-petitioner was the beneficiary of a previously filed Petition for Alien Relative (Form I-130), the VAWA self-petitioner and the VAWA self-petitioners derivatives CSPA age is calculated using the date the Form I-360 was filed because this is the petition through which they are seeking adjustment of status. The historical versions are provided for research and reference purposes only. While K nonimmigrants are not covered under CSPA, K-2 and K-4 nonimmigrants may benefit from CSPA under certain limited circumstances. The Child Status Protection Act - U.S. Embassy & Consulate in Vietnam On February 1, 2021, a visa is no longer available to the prospective applicant under either chart and therefore, the prospective applicant is no longer eligible to file an adjustment of status application. The applicants CSPA age is calculated using the approved petition that forms the new basis of the adjustment of status application.[29]. For derivative asylees, an adjustment applicants CSPA age is his or her age on the date the principal applicants Form I-589 is filed. 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). Official websites use .gov 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)]. [33] The date USCIS considers a visa available for accepting and processing an adjustment of status application according to the USCIS website and the Visa Bulletin is also the date USCIS considers a visa available for CSPA purposes if the petition is already approved. Review our. [^ 44] See 9 FAM 502.1-1(D)(6)(a)(3), Sought to Acquire LPR Status Provision. A visa is continuously available for accepting and processing an application for adjustment of status for a 1-year period if, during each month of that year, the applicant has a priority date that is earlier than the date for their country and category on the chart in the DOS Visa Bulletin designated by USCIS for such month. The noncitizen cannot benefit from the age-out protections of the CSPA. 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. Note:Certain forms, including Form I-290B, have a filing fee. The visa remains available to the prospective applicant through March 2021, that is, for a continuous 1-year period of visa availability. 7 USCIS-PM A.7 - Chapter 7 - Child Status Protection Act. It is important to note that this NVC-generated assessment letter will not hold up the qualification of the case for appointment at post. 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]. In order for the immigrant visa to be considered available for CSPA purposes, two conditions must be met: The visa must be available for the immigrant preference category and priority date. Instead, CSPA provides methods for calculating an applicants age for immigrant visa purposes. National Visa Center (NVC) Immigrant Visa Backlog Report 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. [34] DOS publishes a new Visa Bulletin on a monthly basis. [^ 7] See Section H, Summary of Child Status Protection Act Applicability [7 USCIS-PM A.7(H)] for a condensed guide to basic provisions for each category of CSPA-eligible immigrants. 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. 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. 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. 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.