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. For more information on K-4 visas, see the K-3/K-4 Nonimmigrant Visas page. (CSPA), visa applicants can "opt out" of conversion to the F1 visa category and remain an F2B visa applicant. 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]. 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. [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. He said we need to write a letter to tell them why we believe. 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. You may check the Visa Bulletinto see if opting out of automatic conversion may result in a shorter waiting time for you. The CSPA does not solve the problem of "age outs" for all children of LPRs and other derivative beneficiaries. The DV Program registration period began on October 1, 2012, and the DV Selection Letter is dated May 1, 2013. [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. Share sensitive information only on official, secure websites. A .gov website belongs to an official government organization in the United States. I would like an attorney to double check the CSPA age calculation and draft the letter with appropriate language. 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. 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) and the approval date. CSPA went into effect on August 6, 2002. However, you must remain unmarried in order to qualify. 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. 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 . 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. Child Status Protection Act (CSPA) 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. 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. The NVC did its CSPA analysis when the priority date became current using Chart A, which was on Oct. 1, 2016. [10], Certain Preference Applicants with No Adjustment Application Pending on the Effective Date. USCIS employees should not rely on the historical versions for current laws, precedent decisions, policies, directives, guidance, and procedures. 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. [^ 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)]. * 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. [^ 43] See 9 FAM 502.1-1(D)(6)(a)(3), Sought to Acquire LPR Status Provision. [^ 52] This includes Form I-730 beneficiaries. [^ 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. Collect all the supporting documents and fill out DS-260 (include your child's name on DS-260). The date the visa is considered available is the later of these 2 dates: For DVs, the date a visa is considered available for CSPA purposes is the first day on which the DOS can allocate a visa number based on the principal applicants rank number. The Immigration and Nationality Act (INA) defines a child as a person who is both unmarried and under 21 years old. 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. 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 priority date should not be used for purposes of determining CSPA eligibility. 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. See AFM 21.2(e) (PDF, 1.82 MB), The Child Status Protection Act of 2002. Does Sought to Acquire Requirement Apply? When your stepparent files a Form I-130 for you, you become an immediate relative who can use the CSPA when applying for a Green Card. 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). This content has been superseded by the current version available in the Guidance tab. . Second, while the dates in the Visa Bulletin for the prospective applicants country of chargeability and preference category may not retrogress, USCIS may designate the Final Action Dates chart for use during a given month after having designated the Dates for Filing chart for use during the preceding month. 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. The derivative applicants CSPA age is calculated using the petition underlying the principal beneficiarys adjustment of status application, in other words, the second Form I-140. August 1, 2016 - February 1, 2016 = 6 months (or 182 days). The noncitizen cannot benefit from the age-out protections of the CSPA. or NVC; pay the affidavit of support fee with the NVC; file the DS-260 . 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. The month . The applicant must have been under the age of 21 and unmarried at the time the qualifying Form I-590 was filed. See INA 204(a)(1)(D)(i)(III). Once a Processing Complete Letter has been issued, NVC "closes" the file and places it in a queue for future use. Limited CSPA Coverage for K-4Nonimmigrants. [^ 27] For CSPA purposes, the age at time of visa availability is the applicants age when USCIS considers the applicants visa available. You must check the. This may be beneficial because . Since your age freezes on the date your stepparent files the Form I-130, you may benefit from the CSPA as long as your stepparent files the Form I-130 before your 21st birthday. 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. [^ 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. 3 USCIS-PM - Volume 3 - Humanitarian Protection and Parole, 4 USCIS-PM - Volume 4 - Refugees and Asylees. CSPA does not change the definition of a child. For DV applicants, the number of days the petition was pending is the period of time between the first day of the DV application period for the program year in which the principal applicant qualified and the date on which notifications that entrants have been selected become available. [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. To create an account, you will need your passport. The applicants age is frozen on the date of the refugee parents interview. Applicants who will follow to join the principal applicant later will be interviewed separately. For more information, see Volume 7, Part A, Chapter 7, Part F, Section 2, of the USCIS Policy Manual. Based on the CSPA rule, she should be still qualified for F2A. 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 On that date, the child was 21 years and five months. [^ 31] For DVs, the qualifying petition is the DV Program electronic entry form. In order to establish extraordinary circumstances, the applicant must demonstrate that: The circumstances were not created by the applicant through his or her own action or inaction; The circumstances directly affected the applicants failure to seek to acquire within the 1-year period; and. See Matter of O. Vazquez (PDF), 25 I&N Dec. 817 (BIA 2012). 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)]. U.S. An applicant is listed as a derivative on an approved Form I-140 filed by their parents employer. 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. The formula determining the length of time the petition was pending is as follows: Approval Date - Filing Date = Pending Time. 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. The historical versions are provided for research and reference purposes only. A lock ( A locked padlock ) or https:// means you've safely connected to the .gov website. In most cases, you do not need a Form I-130 to get a Green Card if you are a K-2 nonimmigrant. [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. 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. This chapter primarily focuses on the impact of CSPA on adjustment applicants, though the same principles generally apply to noncitizens seeking an immigrant visa through DOS.[8]. 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. 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. [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]. CSPA (Child Status Protection Act) may allow some of those aged-out children to immigrate, depending upon various factors. You become an immediate relative and will not age out. 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. For more information, see Part F, Special Immigrant-Based (EB-4) Adjustment [7 USCIS-PM F]. If you do not know which USCIS office approved your Form I-130, you may call our USCIS Contact Center. Since your age freezes on the date the Form I-130 is filed, you benefit from the CSPA as long as your stepparent files the Form I-130 before your 21st birthday. 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. Motions to Reopen Following Matter of O. Vazquez. Yes. 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. DV applicants also use the DOS Visa Bulletin to determine visa availability. From the date of visa availability, and provided that the visa remains available for a continuous 1-year period, the applicant has 1 year to fulfill the sought to acquire requirement. Unfortunately, the CSPA requires that if a child is eligible, the child must "seek to acquire" a visa within one year. 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. As mentioned in the assessment letter, applicants should bring any completed joint-sponsor . The applicants CSPA age is calculated as follows: 21 years and 4 months - 6 months = 20 years and 10 months. Congress recognized that many children were aging out due to large USCIS processing backlogs, so it enacted the Child Status Protection Act (CSPA) to protect certain children from aging out. First, the date in the DOS Visa Bulletin for the prospective applicants country of chargeability and preference category may retrogress or move backwards. 272, 362 (October 26, 2001). 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. 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. Official websites use .gov Thinking the NVC was acting on the case, the family sat back and waited for further word. 7 USCIS-PM B - Part B - 245(a) Adjustment, 7 USCIS-PM L - Part L - Refugee Adjustment. 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. 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. 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. 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. In order to protect children from aging out of their cases at age 21, CSPA may extend the eligibility of the applicant, should the applicant meet the CSPA requirements. When the visa becomes available again, the applicants CSPA age is calculated based on the new visa availability date. The applicants underlying petition was pending for 6 months. [^ 44] See 9 FAM 502.1-1(D)(6)(a)(3), Sought to Acquire LPR Status Provision. 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. See 9 FAM 502.6-4, Diversity Visa Processing. 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. 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. The applicant must have had a qualifying Registration for Classification as a Refugee (Form I-590) or Refugee/Asylee Relative Petition (. While K nonimmigrants are not covered under CSPA, K-2 and K-4 nonimmigrants may benefit from CSPA under certain limited circumstances. 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. The letter format is on this forum. 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. Limited CSPA Coverage for K-2 Nonimmigrants. U.S. If we transfer your underlying basis, calculate your CSPA age using your age at the time your immigrant visa becomes available, minus the time the petition that forms the new basis of your adjustment of status application was pending. 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. 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. 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. The calculated age is the childs CSPA age. This allows some people to remain classified as children beyond their 21st birthday. As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. How can I request NVC to consider my son's CSPA age and grant him immigrant visa as well? [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. For more information about K-1 and K-2 nonimmigrant visas, see the Fianc(e) Visas page. The applicant already had a continuous 1-year period in which to seek to acquire. 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 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. 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. The date a Form I-590 is considered filed is the date of the principal refugee parents interview with a USCIS officer. [^ 11] See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. 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 petition had been pending for three months before it was approved, so that period of time can be subtracted from the child's age. At that point, USCIS would calculate CSPA age based on the derivatives age on December 1, 2021 (not October 1, 2020). [^ 41] See Chapter 3, Filing Instructions, Section B, Definition of Properly Filed [7 USCIS-PM A.3(B)]. 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. 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. [34] DOS publishes a new Visa Bulletin on a monthly basis. In September 2015, DOS and USCIS announced a revision to the Visa Bulletin, which created two charts of dates. Therefore, the applicants petition pending time is 6 months (or 182 days). 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. 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)]. [39] This requirement does not apply to refugee derivatives, asylee derivatives, and IRs.[40]. [^ 50] In Matter of O. Vazquez, the Board of Immigration Appeals (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. L. 106-386 (PDF) (October 28, 2000). 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. 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. Diversity immigrant visa (DV) derivatives; CSPA provisions vary based on the immigrant category of the applicant. [^ 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)]. Instead, CSPA provides a method for calculating a persons age to see if they meet the definition of a child for immigration purposes. 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. [49], Impact of Visa Unavailability on the 1-Year Sought to Acquire Requirement. 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. Read Shimanto's reply, I posted the format there. Review our. 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. 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. You should not have your exam until your interview has been scheduled. L. 107-208 (PDF) (August 6, 2002). 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. To benefit from the CSPA age determination, applicant must seek to acquire lawful permanent residence within 1 year of the visa becoming available. CSPA age is frozen on the date the principal asylee parents Form I-589 is filed. VAWA self-petitioners and derivatives who do not qualify for CSPA may qualify for age-out relief under VTPVA. So long as the child was under 21 on the date of the interview, he or she will not age out of eligibility for derivative refugee status or adjustment of status. 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)(I) and INA 204(a)(1)(D)(i)(III). It helps lock in the age and preserve the "child" status of both immediate relatives and those in the preference categories. 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.
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