USCIS Guidance Permits Use of Dates for Filing Chart in Calculating Child Status Protection Act Age

U.S. Citizenship and Immigration Services (USCIS) recently updated its policy manual, effective as of February 14, 2023, to include new provisions regarding how to calculate a “CSPA age” for dependent children approaching the age of 21. As was noted in an October 2022 article, the Child Status Protection Act (CSPA) enables certain dependents to remain eligible for a green card despite reaching the age of 21 while their green card applications are still pending.

In order to take advantage of the protections offered by the CSPA, USCIS requires a calculation of a dependent’s “CSPA age,” based on the following formula:

Age at time of visa availability – length of time immigrant petition was pending = adjusted CSPA age

Previously, determining “age at time of visa availability” required meeting two conditions:

1. the immigrant petition on which the adjustment of status (AOS) was based (such as a petition based on Form I-140, Petition for Alien Worker) must have been approved; and
2. the applicant’s priority date must have been current under the Final Action Dates chart of the Visa Bulletin.

The second condition above, requiring that an applicant’s priority date be current under the Final Action Dates chart, did not necessarily match with USCIS’s actual AOS filing requirements from month to month. Since October 2015, when the Dates for Filing and Final Action Dates charts were created by the U.S. Department of State, USCIS has designated use of either chart for any given month to permit only certain applicants with certain priority dates to file green card applications with USCIS. The Final Action Dates chart had therefore always indicated when a currently pending AOS application would actually be eligible for approval, but it may or may not have indicated when an AOS application could be filed with USCIS. Consequently, this created confusion in calculating an adjusted CSPA age.

Under USCIS’s new guidance, “age at time of visa availability” can be calculated as of the date when both:

1. the immigrant petition on which the AOS is based has been approved; and
2. USCIS indicates that it will accept the dependent’s adjustment of status application for filing based on either the Final Action Dates chart or the Dates for Filing chart (from the first day of that month), based on the immigrant preference category and priority date.

This broader policy may provide significantly more protection to those dependents whose priority dates have never become current under the Final Action Dates chart of the Visa Bulletin, and it applies to those with already-pending applications. Importantly, USCIS stated in its update that it may consider appeals or motions to reopen previously denied AOS applications that may benefit from this new policy. Typically, motions to reopen and appeals must be filed within 30 days after a denial is issued, though USCIS may permit late filings in its discretion if evidence is provided to show that the delay was (1) reasonable, and (2) beyond the individual’s control.

For a helpful illustration of the impact of this new policy change, please see the following hypothetical included in our October 2022 article, below.

Sample CSPA Age Calculation

Hypothetical One

In October 2020, the applicant’s mother’s employer filed I-140 and AOS applications for her and the applicant while her priority date was eligible for filing under the Dates for Filing chart. The applicant was born on January 5, 2000, and was 20 years old at the time her AOS application was filed. The I-140 petition was approved in October 2022 but the priority date has never been current under the Final Action Dates chart.

This is a very common scenario among individuals who filed AOS applications in October through December 2020, when the Dates for Filing chart priority dates had jumped forward significantly. Under previous guidance, the applicant would not have benefited from an adjusted CSPA age, because the applicant’s priority date was never current under the Final Action Dates chart.

Under USCIS’s new guidance, assuming the applicant’s AOS application is still pending, the applicant would now be able to calculate an age at time of visa availability based on her age at the time (1) the I-140 petition was approved, and (2) her priority date became “current” for the purpose of filing an AOS application under the Dates for Filing chart. The later of those two dates would be in October 2022, when the I-140 petition was approved. This means that the applicant’s “age at time of visa availability” would be 22. Following the CSPA calculation:

22 (age at time of visa availability) – 2 years (length of time I-140 was pending) = 20 (CSPA adjusted age)

In this example, the dependent who was not eligible for CSPA protection under the previous USCIS guidance may now stand to benefit significantly from an adjusted CSPA age calculation.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to these and other policy changes and will post updates on the Immigration blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.