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Limited CSPA Coverage for K-4Nonimmigrants. The prospective applicant decides not to apply for adjustment of status between October 1, 2020, and the end of January 2021. 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. 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. [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. 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. 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. If you are a derivative asylee, your CSPA age is your age on the date your principal asylee parent or Form I-730 petitioner filed his or her Form I-589. The CSPA helps preserve the "under 21" age of many children who would otherwise have aged out under the prior law. [^ 4] In addition to CSPA protections, VAWA self-petitioners and derivatives who turn 21 prior to adjusting status may be eligible for age-out protections provided in the Victims of Trafficking and Violence Protection Act (VTPVA) of 2000, Pub. The applicant also files an adjustment of status application based on the second Form I-140. As per CSPA calculator, his CSPA age remains under 21 till November 2017. Child of LPR (F2A) Becomes Child of a U.S. Citizen (Immediate Relative). In this case, the age of the child will be frozen as of the date that the I-130 is received by the government. The applicant must have had a qualifying petition. 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 formula determining the length of time the petition was pending is as follows: Approval Date - Filing Date = Pending Time. Looking for U.S. government information and services? If you do not meet the sought to acquire requirement, we may use our discretion to excuse you from this requirement, if you can establish that your failure to meet this requirement was the result of extraordinary circumstances. The resulting age is known as the applicants CSPA age.. 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. Your mother filed a petition for you on Feb.1, 2016. The applicants mother filed a petition on the applicants behalf on February 1, 2016. VAWA self-petitioners and derivatives who do not qualify for CSPA may qualify for age-out relief under VTPVA. 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. Once a Processing Complete Letter has been issued, NVC "closes" the file and places it in a queue for future use. This guidance becomes effective October 2, 2020. For DVs, the qualifying petition is the DV Program electronic entry form. Does Sought to Acquire Requirement Apply? See 9 FAM 502.6-4, Diversity Visa Processing. The date a Form I-590 is considered filed is the date of the principal refugee parents interview with a USCIS officer. The applicant is 21 years and 4 months old when USCIS considers an immigrant visa available. [^ 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. The CSPA went into effect on August 6, 2002. 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. That is accomplished by filing certain documents within one year of visa availability. 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. As a K-2 nonimmigrant (child of a K-1 nonimmigrant who is the fianc(e) of a U.S. citizen), you typically get a Green Card based on your admission into the U.S. with a K-2 visa and your K-1 parents marriage to the U.S. citizen petitioner within 90 days of being admitted to the U.S. As long as you were under 21 when you were admitted to the United States as a K-2 nonimmigrant, you will not age out of eligibility for a Green Card. [^ 49] Though the CSPA technically requires DV derivatives to seek to acquire within 1 year, this requirement does not generally affect DV derivatives, as they are only eligible to receive a visa through the end of the specific fiscal year in which the principal applicant was selected under INA 203(c). The applicant already had a continuous 1-year period in which to seek to acquire. Calculate your CSPA age as follows: 21 years and 4 months - 6 months = 20 years and 10 months. 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]. 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). 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]. L. 107-208 (PDF) - Child Status Protection Act, G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, I-140,Immigrant Petition for Alien Worker, I-360, Petition for Amerasian, Widow(er), or Special Immigrant, I-485, Application to Register Permanent Residence or Adjust Status, I-526, Immigrant Petition by Standalone Investor, I-589, Application for Asylum or Withholding of Removal, How to Use the USCIS Policy Manual Website (PDF, 2.99 MB). [3] CSPA does not alter this definition. An applicant is listed as a derivative on an approved Form I-140 filed by their parents employer. 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 . 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. See9 FAM 502.6-4, Diversity Visa Processing. 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. Official websites use .gov 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]. You will be notified once a decision is reached. For DVs, the date a visa is considered available is the first day on which the principal applicants rank number is current for visa processing. [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 to qualify as a stepchild, the marriage between your U.S. citizen stepparent and your K3 nonimmigrant parent must have occurred before your 18th birthday. CSPA (Child Status Protection Act) Calculator. [^ 1] See Pub. NVC may add a child to the fee bill if the child's CSPA age is under 21 on the first day of visa availability, or may defer to the consulate to make the decision to add a CSPA-age-adjusted child as a derivative. For more information about K-1 and K-2 nonimmigrant visas, see the Fianc(e) Visas page. Unmarried Son or Daughter of LPR (F2B) Becomes Unmarried Son or Daughter of U.S. Citizen (F1). [^ 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. PDF Cspa and Children of Lprs and Other Derivative Beneficiaries - Ilrc [12] The widow(er)s child(ren), if any, must be under the age of 21 and unmarried at the time of the petitioners death to be classified as derivatives on the automatically converted Form I-360, regardless of whether the child(ren) had a separate pending or approved Form I-130 at the time of the petitioners death. The letter format is on this forum. Based on the CSPA rule, she should be still qualified for F2A. In between we also sent an email to NVC to know the status of our CSPA application for which they replied on 22nd July 2016 like this Quote This case is currently under review for applicability of the Child Status Protection Act (CSPA). The DV Program registration period began on Oct. 1, 2012, and the DV selection Letter is dated May 1, 2013. [^ 17] The date a Form I-590 is considered filed is the date of the principal refugee parents interview with a USCIS officer. 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. 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. [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. 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. How can I request NVC to consider my son's CSPA age and grant him immigrant visa as well? 6 USCIS-PM G.1 - Chapter 1 - Purpose and Background, 6 USCIS-PM G.2 - Chapter 2 - Eligibility Requirements, 7 USCIS-PM A.3 - Chapter 3 - Filing Instructions, 7 USCIS-PM A.6 - Chapter 6 - Adjudicative Review, 7 USCIS-PM B.2 - Chapter 2 - Eligibility Requirements, 7 USCIS-PM B.8 - Chapter 8 - Inapplicability of Bars to Adjustment. [^ 42] Submitting a Form DS-260 that covers only the principal applicant does not meet the sought to acquire requirement for a derivative child. [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. 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. Transferring to a new basis will result in a new calculated CSPA age, as the amount of time the petition was pending will change as will the derivative beneficiarys age at the time of visa availability. See Matter of O. Vazquez (PDF), 25 I&N Dec. 817 (BIA 2012). 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. 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. 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. [32], Determining When an Applicant May File an Adjustment Application and When a Visa is Available for the CSPA Age Calculation. 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. B BigJoe5 Registered Users (C) Jul 26, 2011 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. This content has been superseded by the current version available in the Guidance tab. 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. [^ 24] See Section B, Child Status Protection Act Applicability [7 USCIS-PM A.7(B)] for more information on effective date. The NVC did its CSPA analysis when the priority date became current using Chart A, which was on Oct. 1, 2016. [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. Apply for a U.S. Visa | Expedited/ Age Out/ Follow-T0-Join Cases . For derivative asylees, an adjustment applicants CSPA age is his or her age on the date the principal applicants Form I-589 is filed. . PDF how to recapture/retain and utilize priority dates | February 2022 - ILRC See Section G, Sought to Acquire Requirement [7 USCIS-PM A.7(G)] for detailed information. Therefore, the applicants CSPA age is under 21. He said we need to write a letter to tell them why we believe. HOW TO RECAPTURE/RETAIN AND UTILIZE PRIORITY DATES 4 HOW TO RECAPTURE/RETAIN AND UTILIZE PRIORITY DATES | FEBRUARY 2022 You must submit the correct filing fee for each form unless you are exempt or eligible for a fee waiver. 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. [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]. DV applicants also use the DOS Visa Bulletin to determine visa availability. U.S. Therefore, the applicants pending time is 7 months. Officers consider new evidence of extraordinary circumstances submitted with the motion to reopen, consistent with the guidance in this section. [^ 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. [^ 32] The rank number is the number following the two-letter region code and should correspond with cut-off numbers available in the DOS Visa Bulletin. U.S. 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 applicants CSPA age is calculated as follows: 21 years and 4 months - 6 months = 20 years and 10 months. The CSPA does not solve the problem of "age outs" for all children of LPRs and other derivative beneficiaries. See AFM 21.2(e) (PDF, 1.82 MB), The Child Status Protection Act of 2002. 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 applicant was under the age of 21 at the time of filing, the applicant is eligible for CSPA and will not age out. 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). 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. 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 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]. Unfortunately, the CSPA requires that if a child is eligible, the child must "seek to acquire" a visa within one year. 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. 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. Applicants who will follow to join the principal applicant later will be interviewed separately. 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. L. 106-386 (PDF) (October 28, 2000). Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual to remove references to Biographic Information (Form G-325A). [49], Impact of Visa Unavailability on the 1-Year Sought to Acquire Requirement. 1 USCIS-PM B - Part B - Submission of Benefit Requests, 7 USCIS-PM A - Part A - Adjustment of Status Policies and Procedures, 7 USCIS-PM F - Part F - Special Immigrant-Based (EB-4) Adjustment, 7 USCIS-PM M - Part M - Asylee Adjustment, 11 USCIS-PM A - Part A - Secure Identity Documents Policies and Procedures. Citizenship and Immigration Services (USCIS) is issuing 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 in certain situations. See Chapter 9, Death of Petitioner or Principal Beneficiary [7 USCIS-PM A.9] for more information. 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. [^ 38] There are two ways in which a visa may become unavailable for accepting and processing an adjustment of status application. 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. [13], Similarly, the beneficiary of a pending or approved spousal Form I-130 may subsequently file a VAWA-based Form I-360. [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. 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. 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. 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. Such provisions and details regarding eligibility are described in the following subsections. 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. 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. In order to include his or her child(ren) on the self-petition as derivatives, the child(ren) must be under the age of 21 and unmarried when the Form I-360 is filed, regardless of whether the child(ren) had a separate or approved Form I-130 when the Form I-360 was filed.[14]. 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]. 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. [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. This guidance is effective immediately and applies to adjustment of status applications we adjudicate on or after Feb. 14, 2023. CSPA provides that the age of the child will be frozen in each of the following 3 circumstances: 1) If the US citizen parent submits an I-130 visa petition for a child prior to his or her 21st birthday. Only the applicants who are listed on the interview appointment letter issued by the NVC must appear to be interviewed at the scheduled time. 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. Hello, I need help drafting a CSPA letter for the NVC. I would 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). You will need the ten (10) digit barcode number from your DS-260 confirmation page to book your appointments. Sample of CSPA aged appeal letter to NVC (The Child Status Protection [^ 43] See 9 FAM 502.1-1(D)(6)(a)(3), Sought to Acquire LPR Status Provision. L. 106-386 (October 28, 2000). Certain Preference Applicants Who Did Not Have an Adjustment Application Pending on the Effective Date. 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. Age at Time of Visa Availability - Pending Time = CSPA Age. [^ 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)]. 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. August 1, 2016 - February 1, 2016 = 6 months (or 182 days). 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. CSPA age is calculated by subtracting the number of days the Form I-130 (or Form I-360 for VAWA self-petitioners and derivatives) was pending from the applicants age on the date an immigrant visa becomes available to the applicant. The calculated age is the childs CSPA age. This allows some people to remain classified as children beyond their 21st birthday. The DV Program registration period began on October 1, 2012, and the DV Selection Letter is dated May 1, 2013. Certain provisions of the CSPA apply to some categories of immigrants but not others. A lock ( A locked padlock ) or https:// means you've safely connected to the .gov website. 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. [^ 27] For CSPA purposes, the age at time of visa availability is the applicants age when USCIS considers the applicants visa available. 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. [^ 9] Pending time may also include administrative review, such as motions and appeals, but does not include consular returns. [^ 44] See 9 FAM 502.1-1(D)(6)(a)(3), Sought to Acquire LPR Status Provision. See Matter of O. Vazquez (PDF), 25 I&N Dec. 817 (BIA 2012).