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. Diversity immigrant visa (DV) derivatives; CSPA provisions vary based on the immigrant category of the applicant. This guidance is effective immediately and applies to adjustment of status applications we adjudicate on or after Feb. 14, 2023. INA 201(f) - Rules for determining whether certain aliens are immediate relatives, INA 203(h) - Rules for determining whether certain aliens are children, INA 207(c)(2)(B) - Admission by Attorney General of refugees; criteria; admission status of spouse or child; applicability of other statutory requirements; termination of refugee status of alien, spouse, or child, INA 208(b)(3)(B) - Continued classification of certain aliens as children, INA 209(a)(1) - Inspection and examination by Department of Homeland Security, INA 209, 8 CFR 209 - Adjustment of status of refugees and asylees, Pub. U.S. On that date, the child was 21 years and five months. PDF National Visa Center / AILA DOS Liaison Committee Meeting November 3 [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. 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. 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. The applicants underlying petition was pending for 6 months. [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. CSPA may also still apply to a preference applicant whose immigrant petition was approved prior to August 6, 2002, and who did not have an adjustment application pending on August 6, 2002, but who subsequently applied for adjustment and was denied solely for aging out. 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. [^ 29] A transfer request potentially affects the CSPA age calculation for the derivative beneficiaries. CSPA applies only to the following people: If you are applying for a Green Card based on one of the categories above, you are eligible for CSPA consideration if either your qualifying Form I-485, Application to Register Permanent Residence or Adjust Status, or one of the following underlying forms was filed or pending on or after Aug.6, 2002: If you are a derivative refugee, your CSPA age is your age on the date your principal refugee parent or Form I-730 petitioner filed his or her I-590, which is the date of his or her interview with a USCIS officer. . [^ 10] See Matter of Avila-Perez (PDF), 24 I&N Dec. 78 (BIA 2007). For DV derivative applicants, the number of days the petition was pending is the period of time between the start of the DV Program registration period and the date of the DV selection letter. Therefore, the applicants petition pending time is 6 months (or 182 days). 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. CSPA does not change the definition of a child. [^ 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. [^ 36] See Chapter 6, Adjudicative Review, Section C, Verify Visa Availability, Subsection 5, Visa Retrogression [7 USCIS-PM A.6(C)(5)]. 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. 3 USCIS-PM - Volume 3 - Humanitarian Protection and Parole, 4 USCIS-PM - Volume 4 - Refugees and Asylees. 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. [^ 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). Chapter 8 - Inapplicability of Bars to Adjustment, Volume 1 - General Policies and Procedures, Volume 9 - Waivers and Other Forms of Relief, Volume 11 - Travel and Identity Documents, Volume 12 - Citizenship and Naturalization, Part A - Adjustment of Status Policies and Procedures, Part F - Special Immigrant-Based (EB-4) Adjustment, Part A - Secure Identity Documents Policies and Procedures, Volume 3 - Humanitarian Protection and Parole. 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. [^ 43] See 9 FAM 502.1-1(D)(6)(a)(3), Sought to Acquire LPR Status Provision. [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. See9 FAM 502.6-4, Diversity Visa Processing. The calculated age is the childs CSPA age. This allows some people to remain classified as children beyond their 21st birthday. 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). 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. See Section G, Sought to Acquire Requirement [7 USCIS-PM A.7(G)]. Noncitizens must generally file motions to reopen within 30 days of the decision. 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. The date a Form I-590 is considered filed is the date of the principal refugee parents interview with a USCIS officer. The priority date should not be used for purposes of determining CSPA eligibility. Applicants cannot rely on the DOS Visa Bulletin alone because the Visa Bulletin merely publishes both charts; it does not state which chart can be used to determine when to file an adjustment of status application. You may check the Visa Bulletinto see if opting out of automatic conversion may result in a shorter waiting time for you. 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. U.S. [46], Actions an applicant might take prior to filing an adjustment application, such as contacting an attorney or organization about initiating the process for obtaining a visa that has become available or applying for permanent residence, are not equivalent to filing an application and do not fulfill the sought to acquire requirement. [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]. 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. 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. In order for family-sponsored and employment-based preference and DV adjustment applicants to benefit from the CSPA age calculation, they must seek to acquire lawful permanent residence within 1 year of when a visa becomes available for accepting and processing a potential adjustment of status application. [^ 31] For DVs, the qualifying petition is the DV Program electronic entry form. A visa initially becomes available to the prospective applicant according to the Final Action Dates chart on March 1, 2020, which USCIS designated for use in that month. 7 USCIS-PM A.7 - Chapter 7 - Child Status Protection Act. A lock ( A locked padlock ) or https:// means you've safely connected to the .gov website. The adjustment applicant must have had one of the following approved or pending on or after the CSPAs effective date: a qualifying Petition for Alien Relative (Form I-130), Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360), or Application to Register Permanent Residence or Adjust Status (Form I-485); The applicant must have been under the age of 21 and unmarried at the time the qualifying Form I-130 or Form I-360 was filed; and, If the petitioner of a pending or approved IR spousal petition dies, the spousal Form I-130 automatically converts to a widow(er)s Form I-360. and write this SAMPLE letter to the NVC when sending the documents. [^ 52] This includes Form I-730 beneficiaries. It is meant to insure that sons and daughters can immigrate to the US together with their parents. Instead, CSPA provides a method for calculating a persons age to see if they meet the definition of a child for immigration purposes. In order to calculate an adjustment applicants CSPA age according to the formula above, the officer must first determine the age at time of visa availability. The applicant must be unmarried at the time he or she seeks adjustment of status. 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 CSPA (Child Status Protection Act) may allow some of those aged-out children to immigrate, depending upon various factors. Secure .gov websites use HTTPS 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. U.S. Share sensitive information only on official, secure websites. Your mother filed a petition for you on Feb.1, 2016. The formula for determining the length of time the petition was pending is as follows: Approval Date - Filing Date = Pending Time. [^ 39] See INA 203(h)(1)(A). [2], Section 101(b)(1) of the Immigration and Nationality Act (INA) defines a child as a person who is unmarried and under 21 years old. * 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. 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. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicators Field Manual (AFM) content into the USCIS Policy Manual. However, if the qualifying underlying form was approved prior to the effective date, an applicant who applies for adjustment of status after the effective date may still qualify for CSPA coverage. However, you must remain unmarried in order to qualify. CSPA age is frozen on the date the principal asylee parents Form I-589 is filed. [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]. Please see theFiling Feespage for more information. 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. To benefit from the CSPA age determination, applicant must seek to acquire lawful permanent residence within 1 year of the visa becoming available. Instead, CSPA provides methods for calculating an applicants age for immigrant visa purposes. While K nonimmigrants are not covered under CSPA, K-2 and K-4 nonimmigrants may benefit from CSPA under certain limited circumstances. This situation is commonly referred to as aging out and often means that these applicants would have to file a new petition or application, wait even longer to get a Green Card, or may no longer be eligible for a Green Card. Hi, Our case was approved 2 days after the childs 21 birthday. This page was not helpful because the content: Chapter 9 - Death of Petitioner or Principal Beneficiary, Chapter 10 - Legal Analysis and Use of Discretion, Part I - Adjustment Based on Violence Against Women Act, Part J - Trafficking Victim-Based Adjustment, Part Q - Rescission of Lawful Permanent Residence, Adjustment of Status Filing Charts from the Visa Bulletin, Age-Out Protections Afforded Battered Children Pursuant to The Child Status Protection Act and the Victims of Trafficking and Violence Protection Act, How to Use the USCIS Policy Manual Website, Appendix: 2020 Fee Rule Litigation Summary. He said we need to write a letter to tell them why we believe. U.S. The second employer files a new Form I-140 for the parent, and the applicant is listed as a derivative on this second approved Form I-140. Collect all the supporting documents and fill out DS-260 (include your child's name on DS-260). This technical update replaces all instances of the term foreign national with alien throughout the Policy Manual 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]. Official websites use .gov F-4 CSPA beneficiary - Immigration forums for visa, green card CSPA age is frozen on the date the Form I-360 is filed or the date the Form I-130 is automatically converted to a widow(er)s Form I-360. [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. [^ 38] There are two ways in which a visa may become unavailable for accepting and processing an adjustment of status application. The Child Status Protection Act (CSPA) was enacted in order to keep immigrant families intact despite family-based and employment-based waiting times which can be long. [^ 47] For more information, see Subsection 3, Extraordinary Circumstances [7 USCIS-PM A.7(G)(3)]. 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 . The CSPA helps preserve the "under 21" age of many children who would otherwise have aged out under the prior law. 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. You are only eligible for CSPA if you are the beneficiary of a Form I-130, Petition for Alien Relative. Requesting NVC for IV fee invoice for child because case might apply CSPA 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. Appointment - United States Department of State The CSPA went into effect on August 6, 2002. U.S. 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. If your LPR parent filed a Form I-130 for you as an unmarried son or daughter (second preference classification) and then your parent became a U.S. citizen, you normally would automatically convert to a first preference classification as the unmarried son or daughter of a U.S. citizen (F1). The prospective applicant decides not to apply for adjustment of status between October 1, 2020, and the end of January 2021. Citizenship and Immigration Services (USCIS) is revising its policy guidance in the USCIS Policy Manual to align with the Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements Final Rule, published in the Federal Register on August 3, 2020. [13], Similarly, the beneficiary of a pending or approved spousal Form I-130 may subsequently file a VAWA-based Form I-360. NVC Timeline for Consular Processing Post I-526, I-140 or I-130 For more information about CSPA, see the following: An official website of the U.S. Department of Homeland Security, An official website of the United States government, To protect your privacy, please do not include any personal information in your feedback. [^ 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. More Immigration US visas Immigrant visas [^ 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. 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. CSPA CALCULATOR Fill in the fields below for CSPA Calculator * Fields with *are required fields. You must submit the correct filing fee for each form unless you are exempt or eligible for a fee waiver. The approval notice will also show you which office approved your Form I-130. 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. Family-Sponsored Preference Principals and Derivatives (including VAWA)[54]. F4 and CSPA - VisaJourney This letter should also include your and your parents names and dates of birth and the receipt number for your Form I-130. [31] In other words, the pending time is the period of time between the start of the DV Program registration period to the date of the DV Selection Letter. L. 106-386 (PDF) (October 28, 2000). 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]. [^ 54] 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. Therefore, the applicants CSPA age is under 21. In most cases, you do not need a Form I-130 to get a Green Card if you are a K-2 nonimmigrant. 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. (CSPA) you can "opt out" of conversion to the F1 visa category and remain an F2B visa applicant . 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. See Matter of O. Vazquez (PDF), 25 I&N Dec. 817 (BIA 2012). The historical versions are provided for research and reference purposes only. PDF application of the cspa to the children of u.s. citizen petitioners [^ 41] See Chapter 3, Filing Instructions, Section B, Definition of Properly Filed [7 USCIS-PM A.3(B)]. 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. 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. Cspa need help! - Immigration When a visa becomes unavailable to the noncitizen before a continuous 1-year period has elapsed, the applicant has another 1-year period to seek to acquire when the visa once again becomes available for accepting and processing an adjustment of status application. Read Shimanto's reply, I posted the format there. U.S. It is important to note that this NVC-generated assessment letter will not hold up the qualification of the case for appointment at post.
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