Seek or sought to acquire is used as shorthand in this chapter to refer to this requirement. For more information on CSPA age calculation, see Volume 7, Part A, Chapter 7, Part F, Section 2 of the USCIS Policy Manual. [^ 48] 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. VAWA self-petitioners and derivatives who do not qualify for CSPA may qualify for age-out relief under VTPVA. 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. On June 1, 2021, the visa becomes available again to the prospective applicant. For DVs, the qualifying petition is the DV Program electronic entry form. See Section G, Sought to Acquire Requirement [7 USCIS-PM A.7(G)]. Chapter 8 - Inapplicability of Bars to Adjustment, Volume 1 - General Policies and Procedures, Volume 9 - Waivers and Other Forms of Relief, Volume 11 - Travel and Identity Documents, Volume 12 - Citizenship and Naturalization, Part A - Adjustment of Status Policies and Procedures, Part F - Special Immigrant-Based (EB-4) Adjustment, Part A - Secure Identity Documents Policies and Procedures, Volume 3 - Humanitarian Protection and Parole. The applicant also files an adjustment of status application based on the second Form I-140. For information regarding implementation, see Appendix: 2020 Fee Rule Litigation Summary. Unfortunately, the CSPA requires that if a child is eligible, the child must "seek to acquire" a visa within one year. It is meant to insure that sons and daughters can immigrate to the US together with their parents. [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. Calculate your CSPA age as follows: 21 years and 4 months - 6 months = 20 years and 10 months. A visa subsequently becomes available again on October 1, 2021, based on the Dates for Filing chart, which USCIS has designated for use in that month. A .gov website belongs to an official government organization in the United States. The applicants age is frozen on the date of the refugee parents interview. In order to benefit from CSPA as a family preference (including VAWA self-petition), employment-based preference, or DV applicant, you must seek to acquire lawful permanent resident status within 1 year of when a visa becoming available to you for filing an adjustment of status application. Pending time includes administrative review, such as motions and appeals, but does not include consular returns. [^ 29] A transfer request potentially affects the CSPA age calculation for the derivative beneficiaries. [3] CSPA does not alter this definition. 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 applicant must have had a qualifying Registration for Classification as a Refugee (Form I-590) or Refugee/Asylee Relative Petition (. You can find the receipt number on the receipt and approval notices. [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. Share sensitive information only on official, secure websites. The applicant must have been under the age of 21 and unmarried at the time the qualifying Form I-590 was filed. For more information, see Part F, Special Immigrant-Based (EB-4) Adjustment [7 USCIS-PM F]. [49], Impact of Visa Unavailability on the 1-Year Sought to Acquire Requirement. 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. Limited CSPA Coverage for K-2 Nonimmigrants. 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. [^ 24] See Section B, Child Status Protection Act Applicability [7 USCIS-PM A.7(B)] for more information on effective date. U.S. 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. 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 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. 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. 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]. [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. 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. 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. [^ 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. 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). 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 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. 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. 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 Section G, Sought to Acquire Requirement [7 USCIS-PM A.7(G)] for detailed information. You must check the. Sample of CSPA aged appeal letter to NVC (The Child Status Protection Act) Emily Huynh 413 subscribers Subscribe 45 Share 2.5K views 2 years ago This video shows you how to write a letter. 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. In other words, the applicants age is frozen on the date the Form I-589 is filed. If you think, you are eligible under CSPA then you must write letters to NVC, Consulate and INS claiming your eligibility to speed up processing on your file. 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. 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. August 1, 2016 - February 1, 2016 = 6 months (or 182 days). [^ 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.. [^ 23] Qualifying underlying forms include Petition for Alien Relative (Form I-130); Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360);Immigrant Petition for Alien Workers (Form I-140); Immigrant Petition by Standalone Investor (Form I-526); and Immigrant Petition by Regional Center Investor (Form I-526E). This content has been superseded by the current version available in the Guidance tab. About Press Copyright Contact us Creators Advertise Press Copyright Contact us Creators Advertise [34] DOS publishes a new Visa Bulletin on a monthly basis. 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. 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. Diversity immigrant visa (DV) derivatives; CSPA provisions vary based on the immigrant category of the applicant. Note:Certain forms, including Form I-290B, have a filing fee. [32], Determining When an Applicant May File an Adjustment Application and When a Visa is Available for the CSPA Age Calculation. You will receive instructions concerning interview preparation in the appointment letter that you will receive from the NVC. CSPA (Child Status Protection Act) Calculator. The DV Program registration period began on Oct. 1, 2012, and the DV selection Letter is dated May 1, 2013. 3 USCIS-PM - Volume 3 - Humanitarian Protection and Parole, 4 USCIS-PM - Volume 4 - Refugees and Asylees. [^ 39] See INA 203(h)(1)(A). [10], Certain Preference Applicants with No Adjustment Application Pending on the Effective Date. [^ 11] See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. CSPA age is frozen on the date the principal asylee parents Form I-589 is filed. * Got USCIS receipt notice on April 08, 2011. The DV Program registration period began on October 1, 2012, and the DV Selection Letter is dated May 1, 2013. CSPA applies only to those applicants specified in the statute: Family-sponsored preference principals and derivatives; Violence Against Women Act (VAWA) self-petitioners and derivatives;[4], Employment-based preference derivatives;[5]. The following table outlines immigrant categories covered by CSPA, methods by which CSPA age is calculated, whether the sought to acquire requirement applies, and references to legal authorities and additional guidance. The applicants mother filed a petition on the applicants behalf on February 1, 2016. A lock ( A locked padlock ) or https:// means you've safely connected to the .gov website. 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. U.S. Age at Time of Visa Availability - Pending Time = CSPA Age. If we approve a request to transfer the underlying basis of the pending adjustment of status application, calculate the CSPA age using the approved petition that forms the new basis of the adjustment application. For derivative refugees, an adjustment applicants CSPA age is his or her age on the date the principal applicants Form I-590 is filed. On that date, the child was 21 years and five months. 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. 3) Paid the fees and submitted all the forms. [^ 51] In Matter of O. Vazquez, the 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. As mentioned in the assessment letter, applicants should bring any completed joint-sponsor . 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. 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. This letter should also include your and your parents names and dates of birth and the receipt number for your Form I-130. See Chapter 9, Death of Petitioner or Principal Beneficiary [7 USCIS-PM A.9] for more information. You may check the Visa Bulletinto see if opting out of automatic conversion may result in a shorter waiting time for you. 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. [^ 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. Instead, CSPA provides methods for calculating an applicants age for immigrant visa purposes. 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. U.S. The CSPA went into effect on August 6, 2002. Limited CSPA Coverage for K-4Nonimmigrants. However, we called NVC and was told that she was moved to F2B. 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. CSPA does not change the requirement that the applicant must be unmarried in order to remain eligible for classification as a child for immigration purposes. The visa remains available to the prospective applicant through March 2021, that is, for a continuous 1-year period of visa availability. Your mother filed a petition for you on Feb.1, 2016. The applicant already had a continuous 1-year period in which to seek to acquire. 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. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual regarding the Child Status Protection Act (CSPA), to include how USCIS calculates age under certain contexts and what actions satisfy the sought to acquire requirement. It helps lock in the age and preserve the "child" status of both immediate relatives and those in the preference categories. 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. CSPA may also still apply to a preference applicant whose immigrant petition was approved prior to August 6, 2002, and who did not have an adjustment application pending on August 6, 2002, but who subsequently applied for adjustment and was denied solely for aging out. 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. 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. See Subsection 4, Determining Age at Time of Visa Availability [7 USCIS-PM A.7(F)(4)]. The approval notice will also show you which office approved your Form I-130. See Matter of O. Vazquez (PDF), 25 I&N Dec. 817 (BIA 2012). While K nonimmigrants are not covered under CSPA, K-2 and K-4 nonimmigrants may benefit from CSPA under certain limited circumstances. 21 years 9 months old. 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. USCIS approved the petition on August 1, 2016. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicators Field Manual (AFM) content into the USCIS Policy Manual. This guidance becomes effective October 2, 2020. [^ 10] See Matter of Avila-Perez (PDF), 24 I&N Dec. 78 (BIA 2007). The noncitizen cannot benefit from the age-out protections of the CSPA. 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. U.S. 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. CSPA age is calculated by subtracting the number of days the petition was pending from the applicants age on the date an immigrant visa becomes available to the applicant. 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. The resulting age is known as the applicants CSPA age.. 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. Instead, the filing date (receipt date) is the appropriate date. L. 106-386 (PDF) (October 28, 2000). That is accomplished by filing certain documents within one year of visa availability. Ineffective assistance of counsel, when certain requirements are met. If an applicant has multiple approved petitions, the applicants CSPA age is calculated using the petition that forms the underlying basis for the adjustment of status application. The derivative child does not have an available visa based on the Final Action Dates chart in December 2020, and cannot apply during that month. 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]. (CSPA), visa applicants can "opt out" of conversion to the F1 visa category and remain an F2B visa applicant. See 9 FAM 502.6-4, Diversity Visa Processing. 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. [^ 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 CSPA helps preserve the "under 21" age of many children who would otherwise have aged out under the prior law. [^ 28] See Section G, Sought to Acquire Requirement [7 USCIS-PM A.7(G)] for detailed information. The prospective applicant decides not to apply for adjustment of status between October 1, 2020, and the end of January 2021. The date a Form I-590 is considered filed is the date of the principal refugee parents interview with a USCIS officer. or NVC; pay the affidavit of support fee with the NVC; file the DS-260 . Depending on the facts of the particular case, a derivative beneficiary may become ineligible to adjust status as a derivative as a result of a transfer request because their new calculated CSPA age is no longer under 21 years of age. The derivative may be eligible to retain the priority date from the first Form I-140, but the CSPA calculation uses the second petition, because this is the petition through which the principal beneficiary obtained adjustment of status and that forms the basis for the applicants adjustment of status application. [^ 1] See Pub. I would like an attorney to double check the CSPA age calculation and draft the letter with appropriate language. 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. CSPA age is frozen on the date the Form I-130 is filed (or the Form I-360 is filed for VAWA self-petitioners and derivatives). 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. You should not have your exam until your interview has been scheduled. Noncitizens must generally file motions to reopen within 30 days of the decision. Looking for U.S. government information and services? CSPA (Child Status Protection Act) may allow some of those aged-out children to immigrate, depending upon various factors. 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. Only the applicants who are listed on the interview appointment letter issued by the NVC must appear to be interviewed at the scheduled time. 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. In most cases, you do not need a Form I-130 to get a Green Card if you are a K-2 nonimmigrant. The historical versions are provided for research and reference purposes only. In this case, the age of the child will be frozen as of the date that the I-130 is received by the government. [9], CSPA does not apply to adjustment applications that were subject to a final determination prior to the effective date. 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. USCIS employees should not rely on the historical versions for current laws, precedent decisions, policies, directives, guidance, and procedures. Once a Processing Complete Letter has been issued, NVC "closes" the file and places it in a queue for future use. 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. For more information, see Volume 7, Part A, Chapter 7, Part F, Section 2, of the USCIS Policy Manual. 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. The History tab was added to the USCIS Policy Manual on June 11, 2021, and provides historical versions on and after that date. 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. 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]. 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. Unmarried Son or Daughter of LPR (F2B) Becomes Unmarried Son or Daughter of U.S. Citizen (F1). Looking for U.S. government information and services? 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. [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. 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. On April 1, 2021, a visa is no longer available to the prospective applicant. The formula for determining the length of time the petition was pending is as follows: Approval Date - Filing Date = Pending Time. [^ 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. [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. See AFM 21.2(e) (PDF, 1.82 MB), The Child Status Protection Act of 2002. 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. 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. However, you must remain unmarried in order to qualify. 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.
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