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USCIS Makes Updates to Protect Children From Aging Out of Family Petitions

Posted by Hugo R. Valverde, Managing Attorney, and Anna D. Colby, Attorney Social Media Marketing Manager | Nov 01, 2023 | 0 Comments

Photo by Ernest Brillo on Unsplash

Have you ever heard of the Child Status Protection Act?

USCIS (United States Citizenship and Immigration Services) defines a child as a person who is both unmarried and under 21 years old. The Child Status Protection Act (CSPA) was created by Congress in 2002 to essentially ‘freeze' a child's age to the time of an immigration petition being filed. Due to large USCIS processing backlogs, Congress recognized that many children were aging out of their parents' immigration petitions, and therefore no longer eligible for green cards, and so Congress passed the CSPA so that children's ability to immigrate with their parents would be protected.

The gist of the policy is that as long as children remain unmarried, their age when a family or employment-based petition is filed protects their status as children and their age is ‘frozen' under the Child Status Protection Act, even beyond their 21st birthday. Children essentially then have their biological age and their “CSPA age.” The “CSPA age” is calculated by determining the noncitizen child's biological age at the time their visa becomes available and subtracting any time the petition took to process.

USCIS states that “To benefit from the CSPA, noncitizens must seek to acquire lawful permanent resident status within 1 year of when an immigrant visa becomes available.” There has been some confusion over the last few years, because the government has repeatedly changed how to calculate the “CSPA age” when an immigration visa became available. Because of the changes, some people who applied with their parents ultimately aged out, and found out that their “CSPA age” still did not qualify them for a green card. 

Now the U.S is attempting to rectify that. On February 14 of this year USCIS updated its guidance as to when an immigrant visa becomes available for the purpose of calculating an applicant's CSPA age. But there was still a lot of confusion and missed opportunities for people to finally obtain their green card, so recently USCIS stated it has updated its Policy Manual so that an exception called “the extraordinary circumstances exception” can help noncitizen children who aged out of their family's petitions. USCIS's new policy states that: 

  • It  considers the Feb. 14 policy change to be an extraordinary circumstance that may excuse an applicant's failure to meet the sought to acquire requirement;
  • Clarifies that we may excuse an applicant's failure to meet the sought to acquire requirement if they did not apply to adjust their status because they could not calculate their CSPA age under the prior policy or their CSPA age would have been calculated as over 21, but they are now eligible for CSPA age-out protection under the new policy; and
  • Clarifies that we consider applicants to have met the sought to acquire requirement if their application to adjust their status was pending on Feb. 14 and they applied to adjust their status within 1 year of a visa becoming available based on the Final Action Dates chart under the policy guidance that was in effect when they applied.

USCIS policies are often hard to understand, because they can fluctuate so much, but the hope is that this policy will benefit a lot of families whose children were not able to obtain permanent resident status with them. 

If you need assistance with applying for an immigration petition or figuring out if you ar eligible for a green card based on the CSPA, please reach out to us at (757) 422-8472, or send us a message on our website. You can also schedule an appointment with one of our attorneys by clicking on this link.

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