United States Citizenship and Immigration Service (“USCIS”) has updated its guidance on how to calculate the age of a child applying for adjustment of status under the Child Status Protection Act (“CSPA”). Under the new policy, USCIS will use the State Department’s monthly Visa Bulletin “Dates for Filing” chart, as opposed to the “Final Action Date” chart in order to protect child adjustment of status applicants who risk aging out of availability to obtain a green card as derivative beneficiaries of their parents’ immigrant petitions, upon reaching age twenty-one.
The Immigration and Nationality Act (“INA) defines a child as a person who is both unmarried and under 21 years of age. If someone applies for a green card as a child but turns twenty-one before their application for lawful permanent resident is approved, the foreign national can no longer be considered a child for immigration purposes. Once a child reaches the age of twenty-one they “age out” and are not eligible to obtain permanent residency through a parent. Acknowledging that many children were aging out due to USCIS processing backlogs, Congress enacted the CSPA to protect these minors.
With the goal of providing assistance to underage beneficiaries who would otherwise age out, the CSPA uses a complex formula to help calculate a beneficiary’s age to determine if they meet the definition of a child and thereby able to obtain immigration benefits, even though the beneficiary’s biological age is twenty-one years or older. Known as the “CSPA age”, the CSPA freezes a child’s age when a visa number becomes available. Because the “Dates for Filing” chart provides more favorable dates for individuals to file their adjustment of status applications based on their priority date than the “Final Action Date” chart which establishes when an immigrant visa is authorized for issuance, green card applicants will be able to apply for adjustment of status earlier than they would if they had to follow the “Final Action Date” Chart.
The new policy, which became effective February 14, 2023, and applies to adjustment of status applications filed on or after said date, protects those who are under the age of twenty-one at the time the application is filed from aging out. The new policy also applies retroactively providing certain conditions are met. If a child’s adjustment of status application was denied previously solely based on the child having aged out, and that child would not have aged out based on this new policy change, the applicant may file a motion to reopen the matter with USCIS.
This updated policy provides children with more opportunities to secure their eligibility for permanent residence as dependents of their parents. As we see continue to see visa availability numbers retrogressing several years especially for citizens of certain countries who may wait at least a decade before being eligible to apply for lawful permanent residency, the change in policy will be a saving grace to many who may have otherwise aged out of receiving immigration benefits stemming from their parents’ road to legal permanent residency.