The noncitizen cannot benefit from the age-out protections of the CSPA. L. 107-56 (PDF), 115 Stat. Family-Sponsored Preference Principals and Derivatives (including VAWA)[54]. The DV Program registration period began on October 1, 2012, and the DV Selection Letter is dated May 1, 2013. Age at Time of Visa Availability - Pending Time = CSPA Age. You will receive instructions concerning interview preparation in the appointment letter that you will receive from the NVC. Approval Date [^ 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)]. 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. Therefore, the applicants pending time is 7 months. [^ 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. 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. See Subsection 4, Determining Age at Time of Visa Availability [7 USCIS-PM A.7(F)(4)]. 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. If we previously denied your adjustment of status application, but you believe your CSPA age calculation is under 21 under this policy guidance, you may file a motion to reopen your application using a Notice of Appeal or Motion (Form I-290B). [^ 44] See 9 FAM 502.1-1(D)(6)(a)(3), Sought to Acquire LPR Status Provision. [^ 24] See Section B, Child Status Protection Act Applicability [7 USCIS-PM A.7(B)] for more information on effective date. Pending time includes administrative review, such as motions and appeals, but does not include consular returns. To find remaining AFM content, see the crosswalk (PDF, 350.49 KB)between the AFM and the Policy Manual. 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]. The visa remains available to the prospective applicant through March 2021, that is, for a continuous 1-year period of visa availability. In September 2015, DOS and USCIS announced a revision to the Visa Bulletin, which created two charts of dates. Unmarried Son or Daughter of LPR (F2B) Becomes Unmarried Son or Daughter of U.S. Citizen (F1). * 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. 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. [^ 10] See Matter of Avila-Perez (PDF), 24 I&N Dec. 78 (BIA 2007). The approval notice will also show you which office approved your Form I-130. 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. L. 106-386 (PDF) (October 28, 2000). 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. Review our. 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. 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]. * Got USCIS receipt notice on April 08, 2011. Officers consider new evidence of extraordinary circumstances submitted with the motion to reopen, consistent with the guidance in this section. See INA 204(a)(1)(D)(i)(III). 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 applicant must indicate whether a complaint has been filed with the appropriate disciplinary authorities about any violations of counsels legal or ethical responsibilities, or explain why a complaint has not been filed. If the visa does not remain continuously available for accepting and processing the application, and becomes unavailable again, the period starts anew once the visa becomes available again. 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 this case, the age of the child will be frozen as of the date that the I-130 is received by the government. 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. Looking for U.S. government information and services? The applicant must have had a qualifying Registration for Classification as a Refugee (Form I-590) or Refugee/Asylee Relative Petition (. 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. [^ 42] Submitting a Form DS-260 that covers only the principal applicant does not meet the sought to acquire requirement for a derivative child. [^ 15] See Part M, Asylee Adjustment, Chapter 2, Eligibility Requirements, Section C, Derivative Asylee Continues to be the Spouse or Child of the Principal Asylee [7 USCIS-PM M.2(C)]. This page was not helpful because the content: Green Card for Employment-Based Immigrants, Green Card for Family Preference Immigrants, Green Card for an Immediate Relative of a U.S. Citizen, Fiscal Year 2023 Employment-Based Adjustment of Status FAQs, Adjustment of Status Filing Charts from the Visa Bulletin, While Your Green Card Application Is Pending with USCIS, International Travel as a Permanent Resident, Rights and Responsibilities of a Permanent Resident, Volume 7, Part A, Chapter 7, Part F, Section 2, of the USCIS Policy Manual, Form I-485, Application to Register Permanent Residence or Adjust Status, Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, Form I-140, Immigrant Petition for Alien Worker. [^ 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. The applicants mother filed a petition on the applicants behalf on February 1, 2016. U.S. 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. It helps lock in the age and preserve the "child" status of both immediate relatives and those in the preference categories. See Chapter 9, Death of Petitioner or Principal Beneficiary [7 USCIS-PM A.9] for more information. Yes. Such provisions and details regarding eligibility are described in the following subsections. For derivative refugees, an adjustment applicants CSPA age is his or her age on the date the principal applicants Form I-590 is filed. 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. The applicants CSPA age is calculated using the approved petition that forms the new basis of the adjustment of status application.[29]. Secure .gov websites use HTTPS August 1, 2016 - February 1, 2016 = 6 months (or 182 days). See Matter of O. Vazquez (PDF), 25 I&N Dec. 817 (BIA 2012). Therefore, the applicants petition pending time is 6 months (or 182 days). See INA 204(a)(1)(I). VAWA self-petitioners and derivatives who do not qualify for CSPA may qualify for age-out relief under VTPVA. 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. See Section G, Sought to Acquire Requirement [7 USCIS-PM A.7(G)] for detailed information. [^ 47] For more information, see Subsection 3, Extraordinary Circumstances [7 USCIS-PM A.7(G)(3)]. [^ 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. VAWA self-petitioners and derivatives who do not qualify for CSPA may qualify for age-out relief under VTPVA. Sample of CSPA aged appeal letter to NVC (The Child Status Protection Act) Emily Huynh 413 subscribers Subscribe 45 Share 2.5K views 2 years ago This video shows you how to write a letter. [20] Instead of freezing the age of the applicant on the filing date, as is the case with IRs, CSPA provides a formula by which the preference applicants CSPA age is calculated in a manner that takes into account the amount of time the qualifying petition was pending. 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. If you were under the age of 21 at the time the petition was filed, you are eligible for CSPA and will not age out. Example: Visa Becomes Unavailable Before Filing. 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. To be CSPA qualified you must meet two criteria: Your "CSPA age" must be under 21 years old. The applicants age is frozen on the date of the refugee parents interview. [^ 19] See Part L, Refugee Adjustment, Chapter 2, Eligibility Requirements, Section F, Special Considerations for Refugee Adjustment of Status Applicants, Subsection 2, Child Status Protection Act Provisions [7 USCIS-PM L.2(F)(2)]. [^ 11] See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. 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. 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. 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. [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. . An applicant is listed as a derivative on an approved Form I-140 filed by their parents employer. The applicant would have been considered under the age of 21 under applicable CSPA rules; The applicant applied for adjustment of status within 1 year of visa availability; and. First, the date in the DOS Visa Bulletin for the prospective applicants country of chargeability and preference category may retrogress or move backwards. 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 DV Program registration period began on Oct. 1, 2012, and the DV selection Letter is dated May 1, 2013. For more information about K-1 and K-2 nonimmigrant visas, see the Fianc(e) Visas page. 1 USCIS-PM - Volume 1 - General Policies and Procedures, 7 USCIS-PM - Volume 7 - Adjustment of Status, 9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief, 10 USCIS-PM - Volume 10 - Employment Authorization, 11 USCIS-PM - Volume 11 - Travel and Identity Documents, 12 USCIS-PM - Volume 12 - Citizenship and Naturalization. CSPA age is frozen on the date the principal asylee parents Form I-589 is filed. I would like an attorney to double check the CSPA age calculation and draft the letter with appropriate language. Therefore, the date the visa is considered available for family and employment-based preference applicants is the later of these two dates: The first day of the month of when USCIS considers a visa available for accepting and processing an adjustment of status application for that immigrant preference category and priority date. The Immigration and Nationality Act (INA) defines a child as a person who is both unmarried and under 21 years old. If the adjustment applicant was under the age of 21 at the time the petition was filed or automatically converted, the applicant is eligible for CSPA and will not age out. [^ 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. 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. You become an immediate relative and will not age out. [^ 5] Eligible derivatives of special immigrants are covered by CSPA as their immigrant visas fall under the employment-based fourth preference visa category. The delay was reasonable under the circumstances. The CSPA went into effect on August 6, 2002. Officers may use the USCIS webpage to track movement of dates over time but should confirm consequential dates in the relevant monthly bulletin and chart. [^ 37] In order to qualify under CSPA, the applicant must also remain unmarried through final adjudication and must have sought to acquire lawful permanent residence within 1 year of visa availability. [13], Similarly, the beneficiary of a pending or approved spousal Form I-130 may subsequently file a VAWA-based Form I-360. [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]. 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. U.S. A lock ( A locked padlock ) or https:// means you've safely connected to the .gov website. On that date, the child was 21 years and five months. 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). So my recent CEAC electronic submission story with new information about NVC and CPSA follows: 1) The USCIS approved petition was for a F2A (or F22 - unmarried child under 21 years) 2) NVC CEAC created the case with a F22 visa classification shown on the status page. In order to warrant a favorable exercise of discretion, the circumstances must truly be extraordinary and beyond the adjustment applicants control. [^ 35] USCIS typically designates one of the two charts within 1 week of the publication of the DOS Visa Bulletin. 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. 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). 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]. If you do not know which USCIS office approved your Form I-130, you may call our USCIS Contact Center. As mentioned in the assessment letter, applicants should bring any completed joint-sponsor . [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. 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. 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. Certain Preference Applicants Who Did Not Have an Adjustment Application Pending on the Effective Date. The applicant also files an adjustment of status application based on the second Form I-140. [^ 2] The situation in which noncitizens can no longer be classified as children for immigrant visa purposes due to turning 21 is commonly referred to as aging out.. 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. You must check the. You should not have your exam until your interview has been scheduled. USCIS denied the adjustment application solely because the applicant had aged out. [^ 27] For CSPA purposes, the age at time of visa availability is the applicants age when USCIS considers the applicants visa available. An adjustment applicant may satisfy the sought to acquire requirement by any one of the following: Properly filing an Application to Register Permanent Residence or Adjust Status (Form I-485);[41], Submitting a completed Immigrant Visa Electronic Application (Form DS-260), Part I to the DOS;[42], Paying the immigrant visa fee to DOS;[43], Paying the Affidavit of Support Under Section 213A of the INA (Form I-864) review fee to DOS (provided the applicant is listed on the Affidavit of Support);[44] or, Having a properly filed Application for Action on an Approved Application or Petition (Form I-824) filed on the applicants behalf.