In accordance with the Child Status Protection Act, U.S. Citizenship and Immigration Services has provided guidelines in the USCIS Policy Manual on how to determine when an immigrant visa number becomes accessible for this purpose (CSPA) (USCIS, Feb 14, 2023).
According to USCIS release, a child must typically be under the age of 21 to qualify for lawful permanent resident status in the US based on their parent's accepted petition for a family-sponsored or employment-based visa. The child is typically no longer qualified to immigrate with the parent based on the parent's petition if the child turns 21 and ages out during the immigration procedure.
The CSPA was enacted by Congress to prevent certain noncitizen children from losing their eligibility to apply for lawful permanent resident status based on a petition that was approved for a visa. It does this by establishing a formula to determine the child's age that takes into account the moment that an immigrant visa number becomes available. When a visa number becomes available, it is announced on the Department of State's Visa Bulletin.
This USCIS policy change is effective immediately and applies to pending applications. Therefore, some noncitizens with a pending application may now have a CSPA age that is under 21 based on this change. For example, between October and December of 2020, certain noncitizens were permitted to file their adjustment of status applications under the Dates for Filing chart of the Visa Bulletin. However, the Final Action Date chart never advanced sufficiently for their applications to be approved. These noncitizens filed their adjustment of status applications with the requisite fee without knowing whether the CSPA would benefit them.
With this new guideline, USCIS will now compute these noncitizens' ages for CSPA purposes using the Dates for Filing table, giving these noncitizens more assurance that they are qualified to modify status. These noncitizens will be able to apply for employment and travel authorization based on their pending adjustment of status application if they are qualified to adjust status as a result of the policy change and have done so. They will typically not lose previously granted employment or travel authorization.
Using Form I-290B, Notice of Appeal or Motion, noncitizens may request USCIS to reopen an adjustment of status application that had previously been denied. Ordinarily, noncitizens must submit motions to reopen within 30 days of the ruling. If a motion is submitted more than 30 days after the denial, USCIS may, at its discretion, excuse the late submission if the noncitizen can show that the delay was reasonable and unavoidable.
This Policy Manual amendment won't stop all kids from growing up before they can get an immigrant visa, and it won't keep kids from losing their parent-derived nonimmigrant status when they become 21. USCIS is still looking into all legal alternatives for helping this group. For instance, an anticipated notice of proposed rulemaking on enhancing the rules regulating adjustment of status to lawful permanent residence and associated immigration benefits is included in the regulatory agenda of the Department of Homeland Security.
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