On Aug. 24, 2023, USCIS announced further updates to Chapter 7 of the Policy Manual, made with the goal to expand the number of children who may be able to secure CSPA eligibility for permanent residence as dependents of their parents.
By way of background, on Feb. 14, 2023, USCIS updated the Policy Manual to clarify that USCIS would consider a visa number “available” for the purpose of calculating a child’s age under Child Status Protection Act (CSPA) provisions as reflected in the State Department’s Dates for Filing (“Chart B”) Visa Bulletin. To summarize, the CSPA was enacted with the goal to protect some dependent children from losing their ability to obtain permanent residence due to turning 21, or ”aging out.” To be eligible for CSPA protection, a dependent child’s biological age on the date of visa availability, less the number of days the immigrant visa petition of their parent was pending, must be less than 21. Applicants then have one year to seek to acquire their permanent residence, which can be done by filing an I-485 Application to Adjust Status, paying the immigrant visa fee bill, filing a DS-260 application, and a number of other ways. In implementing the Feb. 14, 2023, Policy Manual updates, USCIS explained that the Agency’s goal was to benefit those children whose parents have approved immigrant visa petitions but are unable to secure their eligibility to obtain permanent residents as dependents of their parents due to visa backlogs. USCIS then further clarified that it would consider the visa available per Chart B of State Department’s Visa Bulletin when calculating CSPA eligibility, only provided that USCIS was accepting Application to Adjust Status (Forms I-485) based on Chart B for the particular month.
In announcing further Policy Manual revisions on Aug. 24, USCIS explained that because of the policy as it was in effect prior to the Feb. 14, 2023, change, some of the dependent children may not have moved forward with applying for Adjustment of Status because a visa was not available to them per the Final Action Dates (“Chart A”) of the Visa Bulletin. Alternatively, they may have decided not to move forward with filing because their CSPA calculated age was over 21 at that time, leading them to believe they were not eligible to make an adjustment of status filing.
With the new Policy Manual Update, USCIS clarified that the Feb. 14, 2023, policy update is considered an ‘extraordinary circumstance.’ As an extraordinary circumstance, USCIS can rely upon this policy to excuse the failure of dependents to seek to acquire their immigrant visas. Additionally, USCIS clarified that it may forgive an Adjustment of Status applicant’s failure to seek to acquire permanent residence if they correctly relied upon the prior policy in not applying for Adjustment of Status, but are now eligible for CSPA protection under the new policy. USCIS also stated that it would consider applicants to have satisfied the seeking to acquire requirement if they filed an Adjustment of Status application prior to Feb. 14, 2023, and if that application was filed within one year of visa becoming available based on Chart A as outlined in the prior policy.
While USCIS has updated its Policy Manual and interpretation of the CSPA terms such as “visa availability” and “seeking to acquire,” the State Department has not confirmed that it would extend similar interpretations to immigrant visa applicants. Similarly, USCIS has not explicitly confirmed whether, in filing a Form I-485, Application to Adjust Status subsequent to the enactment of the updated policy, applicants can satisfy the “seeking to acquire” component of CSPA by having paid an immigrant visa fee bill or filed a Form DS-260 Immigrant Visa Application within one year of visa availability as defined in USCIS’s latest Policy Manual update.
CSPA determinations and calculations can be complex and nuanced, with no regulatory interpretation available for this law. Those with questions regarding CSPA and its applicability to their case should consult with experienced immigration counsel.