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. Under these facts, the prospective applicant failed to seek to acquire permanent residence within 1 year of visa availability because the prospective applicant failed to apply for adjustment of status during the 1-year period between March 1, 2020, and March 1, 2021, when a visa was continuously available to file an adjustment of status application. USCIS employees should not rely on the historical versions for current laws, precedent decisions, policies, directives, guidance, and procedures. 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. Read Shimanto's reply, I posted the format there. The formula for determining the length of time the petition was pending is as follows: Approval Date - Filing Date = Pending Time. This is referred to as the sought to acquire requirement. On April 1, 2021, a visa is no longer available to the prospective applicant. [^ 27] For CSPA purposes, the age at time of visa availability is the applicants age when USCIS considers the applicants visa available. The adjustment applicant must have had one of the following pending on or after the CSPAs effective date: a qualifying Refugee/Asylee Relative Petition (, The applicant must have been under the age of 21 and unmarried at the time the principal asylum applicants. 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. [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]. Hi, Our case was approved 2 days after the childs 21 birthday. A written request to transfer the underlying basis of the adjustment of status application also will meet the sought to acquire requirement, if we receive the request within 1 year of an immigrant visa becoming available in the new preference category. [^ 9] Pending time may also include administrative review, such as motions and appeals, but does not include consular returns. 3 USCIS-PM - Volume 3 - Humanitarian Protection and Parole, 4 USCIS-PM - Volume 4 - Refugees and Asylees. 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. For more information on K-4 visas, see the K-3/K-4 Nonimmigrant Visas page. Certain Preference Applicants Who Did Not Have an Adjustment Application Pending on the Effective Date. [^ 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. Please see theFiling Feespage for more information. 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. In other words, the applicants age is frozen on the date the Form I-589 is filed. See Section G, Sought to Acquire Requirement [7 USCIS-PM A.7(G)] for detailed information. 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. We approved the petition on Aug.1, 2016. [7] CSPA only covers those immigrants explicitly listed in the statute; it does not apply to any other immigrants or nonimmigrants. Applicants who will follow to join the principal applicant later will be interviewed separately. Seek or sought to acquire is used as shorthand in this chapter to refer to this requirement. However, you must remain unmarried in order to qualify. For derivative asylees, an adjustment applicants CSPA age is his or her age on the date the principal applicants Form I-589 is filed. [13], Similarly, the beneficiary of a pending or approved spousal Form I-130 may subsequently file a VAWA-based Form I-360. You will need the ten (10) digit barcode number from your DS-260 confirmation page to book your appointments. The applicants underlying petition was pending for 6 months. [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. Example: Visa Becomes Unavailable Before Filing. 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. [34] DOS publishes a new Visa Bulletin on a monthly basis. That is accomplished by filing certain documents within one year of visa availability. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. 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 U.S. If you do not know which USCIS office approved your Form I-130, you may call our USCIS Contact Center. It appears that NVC generally does not issue fee bills to dependent children who have . [10], Certain Preference Applicants with No Adjustment Application Pending on the Effective Date. I would like an attorney to double check the CSPA age calculation and draft the letter with appropriate language. The parent files an adjustment of status application based on the second Form I-140 and is approved. 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. CSPA (Child Status Protection Act) may allow some of those aged-out children to immigrate, depending upon various factors. Looking for U.S. government information and services? The applicant may file an untimely motion to reopen or reconsider without a filing fee if: Special rules apply in cases where an adjustment applicant would otherwise age out on or after August 6, 2002. Diversity immigrant visa (DV) derivatives; CSPA provisions vary based on the immigrant category of the applicant. VAWA self-petitioners and derivatives who do not qualify for CSPA may qualify for age-out relief under VTPVA. A preference applicant whose visa became available on or after August 7, 2001 who did not seek to acquire within 1 year of such visa availability but who would have qualified for CSPA coverage had he or she applied, but for prior policy guidance concerning the CSPA effective date, may still apply for adjustment of status. 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. A .gov website belongs to an official government organization in the United States. You should not have your exam until your interview has been scheduled. 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. Note: If an applicant has multiple approved petitions, calculate the applicants CSPA age using the petition that forms the underlying basis for the adjustment of status application. L. 107-208 (PDF) (August 6, 2002). [^ 44] See 9 FAM 502.1-1(D)(6)(a)(3), Sought to Acquire LPR Status Provision. L. 106-386 (October 28, 2000). [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), visa applicants can "opt out" of conversion to the F1 visa category and remain an F2B visa applicant. As mentioned in the assessment letter, applicants should bring any completed joint-sponsor . CSPA (Child Status Protection Act) Calculator. [^ 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. 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. However, we called NVC and was told that she was moved to F2B. [^ 1] See Pub. 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 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. For more information about K-1 and K-2 nonimmigrant visas, see the Fianc(e) Visas page. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual to remove references to Biographic Information (Form G-325A). (CSPA) you can "opt out" of conversion to the F1 visa category and remain an F2B visa applicant . 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 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). Collect all the supporting documents and fill out DS-260 (include your child's name on DS-260). If you want to opt out of the automatic conversion, you must submit a written request to the USCIS office that approved your Form I-130. [^ 26] In addition to CSPA protections, VAWA self-petitioners and derivatives who turn 21 prior to adjusting status may be eligible for age-out protections provided in the Victims of Trafficking and Violence Protection Act (VTPVA) of 2000, Pub. The resulting age is known as the applicants CSPA age.. 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 INA 204(a)(1)(D)(i)(I) and INA 204(a)(1)(D)(i)(III). [^ 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)]. 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 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. 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. 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). [^ 17] The date a Form I-590 is considered filed is the date of the principal refugee parents interview with a USCIS officer. Noncitizens must generally file motions to reopen within 30 days of the decision. [^ 39] See INA 203(h)(1)(A). See Subsection 4, Determining Age at Time of Visa Availability [7 USCIS-PM A.7(F)(4)]. 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 applicants CSPA age is calculated using the approved petition that forms the new basis of the adjustment of status application.[29]. . However, you must remain unmarried in order to qualify. 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], CSPA does not apply to adjustment applications that were subject to a final determination prior to the effective date. 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. 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. and write this SAMPLE letter to the NVC when sending the documents. [^ 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)]. 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. Adjustment applicants are eligible for CSPA consideration if either the qualifying application (Application to Register Permanent Residence or Adjust Status (Form I-485)) or one of the following underlying forms was filed or pending on or after the effective date: Petition for Alien Relative (Form I-130); Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360); Immigrant Petition for Alien Worker (Form I-140); Immigrant Petition by Standalone Investor (Form I-526); Immigrant Petition by Regional Center Investor (Form I-526E); Application for Asylum and for Withholding of Removal (Form I-589); Registration for Classification as a Refugee (Form I-590); or, Refugee/Asylee Relative Petition (Form I-730). 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. A .gov website belongs to an official government organization in the United States. 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. The widow(er)s children, if any, who are under the age of 21 and unmarried at the time of the petitioners death can be classified as derivatives on the automatically converted Form I-360 and therefore qualify for the CSPA. Applicants cannot rely on the DOS Visa Bulletin alone because the Visa Bulletin merely publishes both charts; it does not state which chart can be used to determine when to file an adjustment of status application. You must check the. [^ 45] Applicants may file the Form I-824 concurrently with the adjustment application. [^ 43] See 9 FAM 502.1-1(D)(6)(a)(3), Sought to Acquire LPR Status Provision. 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. [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. or NVC; pay the affidavit of support fee with the NVC; file the DS-260 . You must submit the correct filing fee for each form unless you are exempt or eligible for a fee waiver. The DV Program registration period began on October 1, 2012, and the DV Selection Letter is dated May 1, 2013. 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. 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. The noncitizen cannot benefit from the age-out protections of the CSPA. Unfortunately, the CSPA requires that if a child is eligible, the child must "seek to acquire" a visa within one year. A visa initially becomes available to the prospective applicant according to the Dates for Filing chart on October 1, 2020, which USCIS has designated for use in that month. You (not your parent) should send a signed letter stating that you wish to opt out of the conversion from F2B to F1. 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. 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 delay was reasonable under the circumstances. See INA 204(a)(1)(I). . 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. To be CSPA qualified you must meet two criteria: Your "CSPA age" must be under 21 years old. 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. If an eligible applicant filed an adjustment of status application but later a visa is not available for issuance based on the DOS Visa Bulletin Final Action Dates chart for the applicants priority date, country of chargeability, and visa category, USCIS holds the application until the visa becomes available for issuance and the application can be adjudicated. Therefore, the applicants pending time is 7 months. 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 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. 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. [^ 41] See Chapter 3, Filing Instructions, Section B, Definition of Properly Filed [7 USCIS-PM A.3(B)]. 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. 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)]. When a visa becomes unavailable to the noncitizen before a continuous 1-year period has elapsed, the applicant has another 1-year period to seek to acquire when the visa once again becomes available for accepting and processing an adjustment of status application. 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. [^ 35] USCIS typically designates one of the two charts within 1 week of the publication of the DOS Visa Bulletin. 272, 362 (October 26, 2001). This guidance becomes effective October 2, 2020. [^ 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.. [^ 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. The priority date should not be used for purposes of determining CSPA eligibility. This also applies to circumstances when USCIS approves a request to transfer the underlying basis of a pending adjustment of status application to a different immigrant category based on another approved petition. Does Sought to Acquire Requirement Apply? Once a Processing Complete Letter has been issued, NVC "closes" the file and places it in a queue for future use. 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. 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. [^ 47] For more information, see Subsection 3, Extraordinary Circumstances [7 USCIS-PM A.7(G)(3)]. 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. If someone applies for lawful permanent resident (LPR) status as a child but turns 21 before being approved for LPR status (also known as getting a Green Card), that person can no longer be considered a child for immigration purposes. Share sensitive information only on official, secure websites. [^ 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). The calculated age is the childs CSPA age. This allows some people to remain classified as children beyond their 21st birthday. The employer rescinds the parents job offer, but the parent receives a job offer from a second employer. 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. For more information, see Volume 7, Part A, Chapter 7, Part F, Section 2, of the USCIS Policy Manual. Instead, CSPA provides methods for calculating an applicants age for immigrant visa purposes.
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