On February 14, 2023, United States Citizenship and Immigration Services announced it is updating the method by which the agency calculates a child’s age under the Child Status Protection Act for children charged to the family- and employment-based preference categories. Under the new guidance, a visa number will be considered “available” to a child in one of these categories based on either the Final Action Dates or the Dates for Filing chart in the Visa Bulletin, depending upon which is published on USCIS’s Adjustment of Status Filing Charts from the Visa Bulletin webpage as governing the relevant month’s I-485 filings.

This policy has the effect of protecting more children from “aging out” of eligibility to adjust status to lawful permanent residency due to agency delays and/or visa number unavailability.

Overview of the Child Status Protection Act (“CSPA”)

The Child Status Protection Act (“CSPA”) was passed in 2002 to ameliorate the effect of agency processing delays on children eligible for permanent residency as a dependent of a parent. Prior to the passage of the CSPA, a child could become a permanent resident only if he or she remained a “child” right up until becoming a permanent resident. A “child,” according to section 101(b) of the Immigration and Nationality Act, is an individual who is unmarried and under the age of 21.

The CSPA protects children who would otherwise lose eligibility for immigrant visas due to government processing delays. It does not alter the requirement that the child must remain unmarried. Section 3 of the CSPA statute applies to children of employment-based and family-based preference immigrants. It contains a formula for calculating a child’s “CSPA age,” which can be represented as follows:

(Age of child at time of visa availability) – (I-130 or I-140 pending time) = CSPA age

To apply this formula, one must determine the date on which a visa number “becomes available” to the child, and subtract out the number of days the underlying petition was pending. The resulting number is the “CSPA age” of the child, and once established, remains locked in, so long as the child seeks to obtain an immigrant visa within one year of a visa number becoming available.

For family- and employment-based visa categories where the priority date is current at the time the I-130 or I-140 petition is filed, and remains current throughout the process, the child’s CSPA age is locked in upon the approval of the petition and is the child’s age on that date, minus the number of days the petition was pending with USCIS. So long as the child is under 21 on the date the relevant I-130 or I-140 petition is filed, and so long as the child seeks to acquire permanent residency within one year of that date, the CSPA will protect the child from aging out. The change in USCIS policy does not impact these straightforward cases.

The change in USCIS policy will, however, offer additional protection to children for whom a visa number is not immediately available. Under the prior CSPA guidance, USCIS considered a visa number to be “available” for purposes of calculating a child’s “CSPA age” only on the Final Action Dates chart, even if the child was eligible to apply for adjustment of status prior to that date based on the “Dates for Filing” chart.

How USCIS Guidance Will Help to Protect Additional Children from Aging Out

Under the new USCIS guidance, applicants are instructed to refer to the USCIS Adjustment of Status Filing Charts from the Visa Bulletin webpage, which is updated each month to direct I-485 applicants to refer to either the Dates for Filing Chart or to the Final Action Dates chart for each preference category. A visa number is considered “available” when this website indicates that, based on an individual’s preference category and priority date, he or she is eligible to file an I-485 application. Thus, if a child is authorized by the USCIS website to file an I-485 application based on the Dates for Filing chart rather than the Final Action Dates chart, a visa number is considered “available” for CSPA purposes as of the first day of the first month when that individual is authorized to file an I-485 application. Because this date may be much earlier than the date on which a visa number would be available under the Final Action Date chart, it may have the effect of locking in a child’s CSPA age at under 21, and thereby preserving eligibility to adjust status.

If you have questions about this subject or relate matters, please reach out to Harris Beach immigration attorney Danielle M. Rizzo at (716) 200-5149 and
drizzo@harrisbeach.com, or the Harris Beach attorney with whom you most frequently work.

This alert is not a substitute for advice of counsel on specific legal issues.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.