With waits for green cards of up to 10 years, many foreign professionals have faced the nightmare scenario in which their children reach age 21 before the children receive their green cards, meaning that they age out of the sponsorship process.
The Childhood Status Protection Act, which took effect in 2002, provided some relief, but the U.S. Citizenship and Immigration Services has recently updated its policies to provide much broader protection to these children of immigrants.
The USCIS has issued a new policy, which took effect February 14, for calculating a child’s age under the CSPA. Under the new policy, a visa will be available under the CSPA “at the same time that USCIS considers a visa available for accepting and processing the adjustment of status application.” The result is that fewer children will age out before receiving their green cards.
The new policy
Under family- and employment-based immigration adjustment of status (green card) cases, a dependent child is ineligible to adjust status upon reaching the age of 21.
Since 2015, the USCIS has published two charts: (1) a “Dates for Filing” chart, which tells beneficiaries when they may assemble and submit documents to the State Department National Visa Center; and (2) a “Final Action Dates” chart, which tells beneficiaries when a visa has been authorized for issuance. (Taken from the USCIS announcement, with minor edits.)
Before the change took effect last month, the USCIS was considering the age of the beneficiary at the time of the Final Action Date. But now the USCIS will consider the age of the beneficiary at the time of the earlier Date for Filing (as long as the Filing Date is used by USCIS for accepting adjustment of status applications), meaning that the beneficiary will be “younger” for green card purposes. As a result, fewer children will age out, and more will be able to become permanent residents as dependents of their parents.
A formula under the CSPA is used in calculating age that reduces the child’s age by the period of time that the principal applicant’s underlying petition was pending before approval. For example, if the parent’s underlying petition was pending for two years, a 20-year-old child would be “18 years old” for green card purposes.
Historically, an immigrant visa became available using the Final Action Date chart published monthly in the Visa Bulletin by the U.S. Department of State. The child’s priority date (the same as the principal applicant’s) had to be earlier than the date on the chart for the country and applicable preference category.
In 2015, the State Department also began publishing a “Dates for Filing” chart. The purpose of this new chart was to allow applicants to begin the immigrant visa process abroad while waiting for the Final Action Date. At the same time, the USCIS on a monthly basis made determinations as to which chart to use for eligibility to apply for adjustment of status. Often, and certainly in recent times, the Dates for Filing chart has been used.
However, a child’s age under the CSPA was still calculated by both the USCIS and the State Department using the Final Action Chart. That has led to the situation where a child could file for adjustment of status (or an immigrant visa abroad) while he or she was under age 21 but be older than 21 (and therefore no longer eligible) by the Final Action Date.
The new policy corrects this inconsistency for adjustment of status cases.
The State Department has yet to announce whether it will also use the Dates for Filing chart to determine a child’s age under the CSPA. If not, children filing for derivative immigrant visas abroad will continue to age out at a higher rate than USCIS applicants filing for adjustment of status.
A few additional points
- The new policy applies to all adjustment of status applications adjudicated on or after February 14. That means that pending applications will benefit from this new policy as well as new applications.
- The new policy clarifies that the customary one-year period when a child must take action to acquire lawful permanent resident status “starts when a visa becomes available for accepting and processing a potential adjustment of status application.” Although applicants have a one-year filing period, it is advisable to file as soon as possible after the USCIS begins accepting adjustment of status applications using the Dates for Filing chart and the applicant’s priority date first becomes available. The policy gives the USCIS the discretion to choose in a given month to revert to use of the Final Action Date chart as the standard for acceptance of adjustment of status applications. Although this is unlikely to happen, early filing is recommended so that applicants won’t get “caught.”
- Some individuals whose adjustment of status applications were denied before the new policy took effect may be allowed to file motions to reopen and even possibly file these beyond the standard 30-day appeal period.
The new policy is welcome news to parents worrying that their children will not be able to immigrate with them to the United States or be able to adjust status and to become permanent residents along with them.