USCIS has recently updated its guidance related to application and adjudication of Green Card cases under Child Status Protection Act (CSPA) whereby the Service clarifies and provide examples of extraordinary circumstances which may entitle adult children who have “aged out” of their parent’s green cards to obtain them “retroactively”.
As a general background matter, children are typically entitled to receive Green Cards through and as the dependents of their parents own Green Card filing(s). Under the relevant Green Card statutes, a child is generally defined as an unmarried person under 21 years of age. Therefore, to qualify as a child thereby entitling one to a dependent Green Card through a parent’s principal Green Card filing the “child” must be 1) unmarried and 2) under 21 years of age. If either of these two items cease to be, the “child” can no longer qualify for a Green Card through their parents and must find their own, independent Green Card avenue.
Unfortunately, we know that due to processing times and certain visa bulletin mechanics there are instances where children simply age-out of the ability to receive Green Cards through their parents. When this occurs, the children are left with no other option than to find their own, independent Green Card or visa options.
To address this issue of family separation, ensure familial harmony, and avoid unnecessary strains on the immigration system, Congress passed the Child Status Protection Act (CSPA) in the early 2000s. While CSPA does not re-define what constitutes a “child” under the law [see above], it instead provides a formula or arithmetic which re-calculates a child’s age for Green Card immigrant visa purposes. The formula is a little more complex than the following but can be generally understood as:
CSPA Age= [Child’s Age at time priority date becomes current] MINUS [I-140 Pending Time]
We will explain more in detail later, but [Child’s Age at time priority date becomes current] focuses on the Child’s Age on the first day of the month where the priority date is current under the applicable Visa Bulletin in effect at that time. This “age” locks in so long as the priority date remainsw current. For instance, if the priority date comes valid on February 1 and stays valid until October 31, for every month in that window we would focus on the child’s date on February 1 and not the actual month of filing the Green Card Application.
Generally, the [I-140 Pending Time] is the time USCIS takes to approve the parent’s I-140 petition. To calculate the [I-140 Pending Time] we look to the date of filing the I-140 with USCIS and the date USCIS approves the I-140. For those days in between filing and approval, we in between we are entitled to subtract the aggregate sum of those days from the child’s age to find the CSPA Age.
For instance, the child is 21 years and 4 months old on the first day of the month where the priority date is current and it took 6 months of the I-140 to be approved. Without CSPA, the child is no longer a child because he/she is older than 21 years of age at the time the priority date came current. However, with CSPA we can subtract the 6 months of I-140 processing from the child’s age on the first day of the month where the priority date is current and in doing so the Child’s age is now 20 years and 10 months old and therefore meets the definition of a child under the applicable statues.
To understand fully appreciate CSPA, we need to briefly discuss and understand the importance of the visa bulletin. Every month, USCIS and the Department of State (DOS) issue a visa bulletin which identifies the “availability” of immigrant visas. Typically, there are two charts: 1) Dates of Filing and 2) Final Action. The easiest way to understand the difference between the two is that the Dates of Filing chart is typically the government’s notice to the public the availability and/or cut off dates allowing people to even file their Green Card applications whereas the Final Action date is the government’s notice to itself that they can actually issue the Green Cards. If you have a priority date on or before a certain date on the Dates of Filing chart, the government will accept your Green Card application. If you have a priority date on or before the date on the Dates of Filing chart, the Government can fully approve the Green Card. As a general rule, the closer a given listed date is to today’s date the “better” for the immigrant.
For a quick representative example, here is the August 2023 Visa Bulletin:
As we can see, the Dates of Filing chart is typically closer to today’s date than the dates shown under Final Action chart. Effectively, this means the government might be willing to accept your case (Dates For Filing chart) but you will still have some time to wait before they will/can actually approve the case (Final Action). This distinction is the nuance between the old and new CSPA rule.
What is the old CSPA rule?
From the early 2000s until the recent Biden Administration’s rule “change” discussed below, USCIS would calculate CSPA age as 1) the child’s age on the first day of the month in which the priority date is current under the Final Action chart minus 2) the I-140 processing time.
For example, the child is 18 years of age when his parent’s file the Green Card under the Dates of Filing chart. It takes the government three years or so for the priority date to become current under Final Action chart and when the priority date finally comes current under Final Action chart the child 21 years and 7 months of age. The I-140 that supported the I-485 filing took 6 months for approval.
Under the old CSPA rule, the child would have aged out and would not be eligible for a Green Card through his/her parents even though the case was filed when the child was 18. Under the old CSPA rule the child would be considered 21 years and 1 month old and miss out on a life changing opportunity. Under the old CSPA rule, the age is locked in under the Final Action chart—at that time the child is 21 years and 7 months old. Subtracting out the 6 months of I-140 processing time, we don’t get under the 21 year arithmetic threshold and therefore the child is now an adult in the government’s eye and must find their own path for permanent residency.
What is the new CSPA rule?
In February 2023, the Biden Administration exercised its authority to redefine CSPA calculation. They did not change the aforementioned arithmetic, but instead amended how it would be applied. Under the “new” CSPA rule, USCIS would calculate CSPA age as 1) the child’s age on the first day of the month in which the priority date is current under the Date of filing chart minus 2) the I-140 processing time.
Using the example from above and applying the rule in the latest format let’s assume the child is 18 years of age when his parent’s file the Green Card under the Dates of Filing chart. It takes the government three years or so for the priority date to become current under Final Action chart and when the priority date finally comes current under Final Action chart the child 21 years and 7 months of age. The I-140 that supported the I-485 filing took 6 months for approval.
Under the new CSPA rule, the child is not considered to have aged out and would be eligible for a Green Card through his/her parents as the child’s age was locked in on the very date of filing, i.e. under the Dates of Filing chart rather than under the old rule locked in under the Final Action chart.
What is the new CSPA guidance?
The new CSPA guidance focuses on one of the qualifications for CSPA, specifically the “sought to acquire” requirement. In essence, to qualify for CSPA protection a person must “seek to acquire” lawful residency—meaning actually file an I-485–within one year of their priority date becoming current. Under the old guidance, if an individual did not seek to acquire lawful residency within 12 months of their priority date becoming current then the person would no longer qualify for CSPA protection in months 13, 14, 15 and so on.
For example, say the priority date became current in January 2020 and remained current until December 31, 2020. During this 12 month period, the child never sought to acquire lawful residency. Now, on January 1, 2021 the child wishes to file a Green Card. Under this fact scenario, the child would no longer be entitled to CSPA protection and will not likely obtain a Green Card through his/her parents Green Card filing.
Under the new guidance, USCIS provides instances and examples of extraordinary circumstance which would allow the government to exercise discretion to forgive a child’s failure to seek to acquire” lawful residency” within 12 months of the priority date becoming current thereby enabling CSPA protections if seeking to acquire lawful residency subsequent to the “mandatory” 12 month period.
For more information, or for a detailed conversation regarding your specific Green Card circumstances, Child Status Protection Act eligibility, or other potential issues arising during your or your families Permanent Residency Process, please schedule a time to speak here.
By: Ryan A. Wilck, Partner and Attorney at Law
Ryan Wilck is a Managing Partner and attorney at Reddy & Neumann, P.C. with over a decade of US immigration law experience, enthusiastic and proactive in his approach assisting clients and their employees through the various phases of the permanent residency a/k/a Green Card process. “Concilio et labore” is not only the motto of Ryan’s favorite sports club but is also his life’s motto; all things come through wisdom and effort. Ryan is passionate about gaining the trust of his clients by utilizing a relentless and detail-oriented approach to understand their specific goals and concerns, hoping to instill a sense of confidence and stability. Whatever your immigration problem or interest, he and his team will find a solution, through wisdom and effort. Reddy & Neumann, P.C. has been serving the business community for over 20 years and is Houston’s largest immigration law firm focused solely on employment-based business immigration. We work with employers and their employees, helping navigate the complex immigration process efficiently and cost-effective.
We are committed to assisting our clients with navigating the complex PERM Labor Certification (ETA 9089 and other challenging immigration matters as an accomplished immigration law firm in Houston, Texas. Our team is here to offer the direction and support you require, whether you’re a company trying to hire top talent or a foreign worker seeking to develop a career in the United States. To find out more about how we can help you with your immigration issues, get in touch with us right away.