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[^ 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. You (not your parent) should send a signed letter stating that you wish to opt out of the conversion from F2B to F1. The Child Status Protection Act, or CSPA, was enacted in 2002 in an effort to prevent certain children from aging out while they wait to immigrate on a family-based petition. Instead, CSPA provides methods for calculating an applicants age for immigrant visa purposes. This letter should also include your and your parents names and dates of birth and the receipt number for your Form I-130. [^ 46] If a derivative child has a pending adjustment application and USCIS approves the principal applicants request to transfer the underlying basis of their adjustment application to a different immigrant category based on another approved petition, then the date that the transfer request is received by USCIS is the date used to determine whether the derivative child met the sought to acquire requirement. Diversity immigrant visa (DV) derivatives; CSPA provisions vary based on the immigrant category of the applicant. [34] DOS publishes a new Visa Bulletin on a monthly basis. Unmarried Son or Daughter of LPR (F2B) Becomes Unmarried Son or Daughter of U.S. Citizen (F1). (CSPA) you can "opt out" of conversion to the F1 visa category and remain an F2B visa applicant . The applicant must have had a qualifying petition. [^ 36] See Chapter 6, Adjudicative Review, Section C, Verify Visa Availability, Subsection 5, Visa Retrogression [7 USCIS-PM A.6(C)(5)]. To find remaining AFM content, see the crosswalk (PDF, 350.49 KB)between the AFM and the Policy Manual. [^ 5] Eligible derivatives of special immigrants are covered by CSPA as their immigrant visas fall under the employment-based fourth preference visa category. [10], Certain Preference Applicants with No Adjustment Application Pending on the Effective Date. 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. Limited CSPA Coverage for K-2 Nonimmigrants. 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. In these circumstances, you are not eligible for and do not need CSPA in order to get a Green Card. The applicant is 21 years and 4 months old when USCIS considers an immigrant visa available. 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. DV applicants also use the DOS Visa Bulletin to determine visa availability. Your petition was pending for 6 months. NVC will send another invoice for both of your child once the visa date/priority date confirmed that they are qualified for CSPA. Generally, in order to establish eligibility, a derivative asylee must have been listed on the principal applicants Form I-589 prior to a final decision on the principals asylum application. 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. The DV Program registration period began on Oct. 1, 2012, and the DV selection Letter is dated May 1, 2013. Officers should review the USCIS Adjustment of Status Filing Charts from the Visa Bulletin webpage to determine whether the applicant had a prior 1-year period of visa availability to file for adjustment of status. 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. . Note:Certain forms, including Form I-290B, have a filing fee. While you must be unmarried to qualify for admission into the U.S. as a derivative refugee, you do not need to remain unmarried in order to qualify for a Green Card under INA section 209. L. 107-208 (PDF) (August 6, 2002). 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. 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. Official websites use .gov The resulting age is known as the applicants CSPA age.. [49], Impact of Visa Unavailability on the 1-Year Sought to Acquire Requirement. Yes. 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. The NVC did its CSPA analysis when the priority date became current using Chart A, which was on Oct. 1, 2016. However, if your stepparent and your K-1 nonimmigrant parent did not marry within 90 days (a requirement for getting a Green Card based on K-1 and K-2 nonimmigrant status), your stepparent might choose to file a Form I-130 for you. This technical update clarifies thatcertain child beneficiaries of family-sponsored immigrant visa petitions who are ineligible for the Child Status Protection Act may continue their adjustment of status application if the petition is automatically converted to an eligible category. For example, the law allows unmarried children of U.S. citizens to remain immediate relatives if they are under 21 when the I-130 petition is filed. 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. 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. 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. It helps lock in the age and preserve the "child" status of both immediate relatives and those in the preference categories. See INA 209(a)(1). The formula determining the length of time the petition was pending is as follows: Approval Date - Filing Date = Pending Time. If you were under the age of 21 at the time your parent filed Form I-589, your age is frozen as of that date and you will not age out. You can find the receipt number on the receipt and approval notices. 7 USCIS-PM B - Part B - 245(a) Adjustment, 7 USCIS-PM L - Part L - Refugee Adjustment. [3] CSPA does not alter this definition. As per CSPA calculator, his CSPA age remains under 21 till November 2017. CSPA applies only to those applicants specified in the statute: Family-sponsored preference principals and derivatives; Violence Against Women Act (VAWA) self-petitioners and derivatives;[4], Employment-based preference derivatives;[5]. [^ 1] See Pub. 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. [^ 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)]. First, the date in the DOS Visa Bulletin for the prospective applicants country of chargeability and preference category may retrogress or move backwards. 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. Looking for U.S. government information and services? Therefore, the applicants petition pending time is 6 months (or 182 days). To be CSPA qualified you must meet two criteria: Your "CSPA age" must be under 21 years old. [^ 44] See 9 FAM 502.1-1(D)(6)(a)(3), Sought to Acquire LPR Status Provision. 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]. 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). [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. 3 USCIS-PM - Volume 3 - Humanitarian Protection and Parole, 4 USCIS-PM - Volume 4 - Refugees and Asylees. This guidance becomes effective October 2, 2020. It is important to note that this NVC-generated assessment letter will not hold up the qualification of the case for appointment at post. The applicant also files an adjustment of status application based on the second Form I-140. [^ 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. 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. APPLICATION OF THE CHILD STATUS PROTECTION ACT TO THE CHILDREN OF U.S. CITIZEN PETITIONERS 2 APPLICATION OF THE CSPA TO THE CHILDREN OF U.S. CITIZEN PETITIONERS | DECEMBER 2018 B. Child's Age Frozen on the Date of the Parent's Naturalization The CSPA also amended Section 201 of the INA to provide that if a permanent resident parent who had filed a visa 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. National Visa Center (NVC) Immigrant Visa Backlog Report Last updated February 2023 Since March 2020, the COVID-19 pandemic has dramatically affected the Department of State's ability to process immigrant visa applications. In this case, the age of the child will be frozen as of the date that the I-130 is received by the government. (recent experience with CSPA). Collect all the supporting documents and fill out DS-260 (include your child's name on DS-260). Ineffective assistance of counsel, when certain requirements are met. Review our. CSPA age is frozen on the date the principal asylee parents Form I-589 is filed. Calculate your CSPA age as follows: 21 years and 4 months - 6 months = 20 years and 10 months. In October 2020, USCIS designates the Dates for Filing chart of the DOS Visa Bulletin for use to apply for adjustment of status in the employment-based preference categories. Such retrogression can affect either chart in the Visa Bulletin and may result in a visa becoming unavailable to the prospective applicant for accepting and processing their application. 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. Secure .gov websites use HTTPS [45], USCIS also considers a written request to transfer the underlying basis of the adjustment of status application to satisfy the sought to acquire requirement if the request is received within 1 year of an immigrant visa becoming available in the new preference category. 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. If you have a pending adjustment application as a derivative child, and we grant the principal applicants request to transfer the underlying basis of their adjustment application to a different immigrant category based on another approvedpetition, then the date we receive the transfer request is the date we use to determine whether you meet the sought to acquire requirement. If your LPR parent filed a Form I-130 for you as his or her child and then your parent became a U.S. citizen before you turned 21, your age freezes on the date your parent became a citizen. The History tab was added to the USCIS Policy Manual on June 11, 2021, and provides historical versions on and after that date. He said we need to write a letter to tell them why we believe. [^ 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). Child of LPR (F2A) Becomes Child of a U.S. Citizen (Immediate Relative). This guidance is effective immediately and applies to adjustment of status applications we adjudicate on or after Feb. 14, 2023. Official websites use .gov 21 years 9 months old. 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]. The parent files an adjustment of status application based on the second Form I-140 and is approved. The historical versions linked below reflect the pertinent policy in effect on that date and dates reflect when updates occurred. This technical update to Volume 7 includes references to the EB-5 visa program and Form I-526, Immigrant Petition by Alien Investor, and clarifications regarding the Child Status Protection Act eligibility of derivative applicants of the VAWA-based Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. Age at Time of Visa Availability - Pending Time = CSPA Age. . 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. 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. 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. [^ 38] There are two ways in which a visa may become unavailable for accepting and processing an adjustment of status application. A .gov website belongs to an official government organization in the United States. 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. However, CSPA does not change the requirement that you must be unmarried in order to remain eligible for classification as a child. 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. 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. Example: Visa Becomes Unavailable Before Filing. [^ 31] For DVs, the qualifying petition is the DV Program electronic entry form. Share sensitive information only on official, secure websites. 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. At that point, USCIS would calculate CSPA age based on the derivatives age on December 1, 2021 (not October 1, 2020). 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. 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. [^ 51] In Matter of O. Vazquez, the BIA ruled that extraordinary circumstances could warrant the exercise of discretion to excuse an applicant who failed to meet the sought to acquire requirement during the 1-year period. 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. [^ 22] See INA 203(h)(1)(A). See INA 204(a)(1)(D)(i)(I) and INA 204(a)(1)(D)(i)(III). VAWA self-petitioners and derivatives who age out before adjusting status are considered self-petitioners for preference status, and derivatives retain the priority date of their parents Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) VAWA self-petition. See Section G, Sought to Acquire Requirement [7 USCIS-PM A.7(G)] for detailed information. L. 106-386 (PDF) (October 28, 2000). 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. [^ 11] See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. 3) Paid the fees and submitted all the forms. [^ 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)]. [9], CSPA does not apply to adjustment applications that were subject to a final determination prior to the effective date. [^ 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.. Review our. HOW TO RECAPTURE/RETAIN AND UTILIZE PRIORITY DATES 4 HOW TO RECAPTURE/RETAIN AND UTILIZE PRIORITY DATES | FEBRUARY 2022 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 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. On that date, the child was 21 years and five months. 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. An applicant may only establish extraordinary circumstances due to ineffective assistance of counsel (the applicants legal representative or attorney) if he or she completes the following: The applicant must submit an affidavit explaining in detail the agreement that was entered into with counsel regarding the actions to be taken and what information, if any, counsel provided to the applicant regarding such actions; The applicant must demonstrate that he or she has made a good faith effort to inform counsel whose integrity or competence is being questioned of the allegations brought against him or her and that counsel has been given an opportunity to respond; and. [^ 29] A transfer request potentially affects the CSPA age calculation for the derivative beneficiaries. See AFM 21.2(e) (PDF, 1.82 MB), The Child Status Protection Act of 2002. 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. You will need the ten (10) digit barcode number from your DS-260 confirmation page to book your appointments. In order to warrant a favorable exercise of discretion, the circumstances must truly be extraordinary and beyond the adjustment applicants control. 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)]. This is referred to as the sought to acquire requirement. CSPA allows children who turn 21 years old after an asylum application is filed but prior to adjudication to continue to be classified as children and remain eligible for derivative asylum status and adjustment of status. CSPA. 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. 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. CSPA CALCULATOR Fill in the fields below for CSPA Calculator * Fields with *are required fields. 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. 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.