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CSPA provides that the age of the child will be frozen in each of the following 3 circumstances: 1) If the US citizen parent submits an I-130 visa petition for a child prior to his or her 21st birthday. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to incorporate changes resulting from the EB-5 Reform and Integrity Act of 2022. When a lawful permanent resident (LPR) files a Form I-130, Petition for Alien Relative for his or her child or unmarried son or daughter, the petition is classified as a family second preference case. However, CSPA does not change the requirement that you must be unmarried in order to remain eligible for classification as a child. Since October 2015, the Visa Bulletin has featured two charts per immigrant preference category: USCIS designates one of the two charts for use by applicants each month. For derivatives of widow(er)s, a childs age is frozen on the date the Form I-360 is filed or the spousal Form I-130 is automatically converted to a widow(er)s Form I-360 (in other words, the date of the petitioners death). 7 USCIS-PM A.7 - Chapter 7 - Child Status Protection Act. A written request to transfer the underlying basis of the adjustment of status application also will meet the sought to acquire requirement, if we receive the request within 1 year of an immigrant visa becoming available in the new preference category. Age at Time of Visa Availability - Pending Time = CSPA Age. (recent experience with CSPA). Ineffective assistance of counsel, when certain requirements are met. [36], The applicants CSPA age is determined based on how long the applicants underlying petition was pending and the applicants age when a visa became available to the applicant or the petition is approved, whichever is later. U.S. [39] This requirement does not apply to refugee derivatives, asylee derivatives, and IRs.[40]. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual regarding the Child Status Protection Act (CSPA), to include how USCIS calculates age under certain contexts and what actions satisfy the sought to acquire requirement. Applicants who will follow to join the principal applicant later will be interviewed separately. The prospective applicant decides not to file for adjustment of status between March 1, 2020, and March 31, 2021. CSPA (Child Status Protection Act) Calculator. You must submit the correct filing fee for each form unless you are exempt or eligible for a fee waiver. [^ 53] For more detailed guidance on CSPA applicability and VAWA, see INA 204(a)(1)(D)(i) and Age-Out Protections Afforded Battered Children Pursuant to The Child Status Protection Act and the Victims of Trafficking and Violence Protection Act (PDF, 104.96 KB), issued August 17, 2004. [^ 24] See Section B, Child Status Protection Act Applicability [7 USCIS-PM A.7(B)] for more information on effective date. The derivative may be eligible to retain the priority date from the first Form I-140, but the CSPA calculation uses the second petition, because this is the petition through which the principal beneficiary obtained adjustment of status and that forms the basis for the applicants adjustment of status application. Fortunately, her PD is current that month too. Transferring to a new basis will result in a new calculated CSPA age, as the amount of time the petition was pending will change as will the derivative beneficiarys age at the time of visa availability. If we transfer your underlying basis, calculate your CSPA age using your age at the time your immigrant visa becomes available, minus the time the petition that forms the new basis of your adjustment of status application was pending. Officers should review the USCIS Adjustment of Status Filing Charts from the Visa Bulletin webpage to determine whether the applicant had a prior 1-year period of visa availability to file for adjustment of status. Therefore, the date the visa is considered available for family and employment-based preference applicants is the later of these two dates: The first day of the month of when USCIS considers a visa available for accepting and processing an adjustment of status application for that immigrant preference category and priority date. Generally, in order to qualify, the derivative refugee must be listed as a child on the principal applicants Form I-590 prior to a final decision. If your LPR parent filed a Form I-130 for you as an unmarried son or daughter (second preference classification) and then your parent became a U.S. citizen, you normally would automatically convert to a first preference classification as the unmarried son or daughter of a U.S. citizen (F1). This technical update replaces all instances of the term alien with noncitizen or other appropriate terms throughout the Policy Manual where possible, as used to refer to a person who meets the definition provided in INA 101(a)(3) [any person not a citizen or national of the United States]. Calculate your CSPA age as follows: 21 years and 4 months - 6 months = 20 years and 10 months. The applicant may file an untimely motion to reopen or reconsider without a filing fee if: Special rules apply in cases where an adjustment applicant would otherwise age out on or after August 6, 2002. For example, the law allows unmarried children of U.S. citizens to remain immediate relatives if they are under 21 when the I-130 petition is filed. In September 2015, DOS and USCIS announced a revision to the Visa Bulletin, which created two charts of dates. In most cases, you do not need a Form I-130 to get a Green Card if you are a K-2 nonimmigrant. When considering a claim of extraordinary circumstances, the officer should weigh the totality of the circumstances and the connection between the circumstances presented and the failure to meet the sought to acquire requirement within the 1-year period, as well as the reasonableness of the delay. [^ 41] See Chapter 3, Filing Instructions, Section B, Definition of Properly Filed [7 USCIS-PM A.3(B)]. Therefore, the applicants pending time is 7 months. The CSPA age associated with the petition does not change after the filing of the adjustment of status application and is frozen through the final adjudication, regardless of when a visa is authorized for issuance based on the Final Action Dates chart.[37]. From the date of visa availability, and provided that the visa remains available for a continuous 1-year period, the applicant has 1 year to fulfill the sought to acquire requirement. See INA 204(a)(1)(I). Applicants cannot rely on the DOS Visa Bulletin alone because the Visa Bulletin merely publishes both charts; it does not state which chart can be used to determine when to file an adjustment of status application. CSPA does not change the definition of a child. [^ 52] This includes Form I-730 beneficiaries. [^ 1] See Pub. [^ 9] Pending time may also include administrative review, such as motions and appeals, but does not include consular returns. When an applicant seeks to acquire after the 1-year period of visa availability has elapsed and does not provide an explanation or evidence of extraordinary circumstances, the officer issues a Notice of Intent to Deny (NOID) to give the applicant an opportunity to rebut the apparent ineligibility. The approval notice will also show you which office approved your Form I-130. [^ 27] For CSPA purposes, the age at time of visa availability is the applicants age when USCIS considers the applicants visa available. The CSPA helps preserve the "under 21" age of many children who would otherwise have aged out under the prior law. If the petitioner of a pending or approved immediate relative spousal petition dies, their spouses Form I-130 automatically converts to a widow(er)s Form I-360. Collect all the supporting documents and fill out DS-260 (include your child's name on DS-260). [^ 22] See INA 203(h)(1)(A). VAWA self-petitioners and derivatives who do not qualify for CSPA may qualify for age-out relief under VTPVA. The DV Program registration period began on Oct. 1, 2012, and the DV selection Letter is dated May 1, 2013. Chapter 8 - Inapplicability of Bars to Adjustment, Volume 1 - General Policies and Procedures, Volume 9 - Waivers and Other Forms of Relief, Volume 11 - Travel and Identity Documents, Volume 12 - Citizenship and Naturalization, Part A - Adjustment of Status Policies and Procedures, Part F - Special Immigrant-Based (EB-4) Adjustment, Part A - Secure Identity Documents Policies and Procedures, Volume 3 - Humanitarian Protection and Parole. To find remaining AFM content, see the crosswalk (PDF, 350.49 KB)between the AFM and the Policy Manual. [20] Instead of freezing the age of the applicant on the filing date, as is the case with IRs, CSPA provides a formula by which the preference applicants CSPA age is calculated in a manner that takes into account the amount of time the qualifying petition was pending. The noncitizen cannot benefit from the age-out protections of the CSPA. CSPA age is frozen on the date the principal asylee parents Form I-589 is filed. [^ 13] A child of a widow(er) who is ineligible to be included as a derivative may be eligible for consideration under INA 204(l) or humanitarian reinstatement under 8 CFR 205.1(a)(3)(i)(C)(2). VAWA self-petitioners and derivatives who do not qualify for CSPA may qualify for age-out relief under VTPVA. The applicants age is frozen on the date of the refugee parents interview. [^ 47] For more information, see Subsection 3, Extraordinary Circumstances [7 USCIS-PM A.7(G)(3)]. However, if your stepparent and your K-1 nonimmigrant parent did not marry within 90 days (a requirement for getting a Green Card based on K-1 and K-2 nonimmigrant status), your stepparent might choose to file a Form I-130 for you. How can I request NVC to consider my son's CSPA age and grant him immigrant visa as well? U.S. Note: If an applicant has multiple approved petitions, calculate the applicants CSPA age using the petition that forms the underlying basis for the adjustment of status application. B BigJoe5 Registered Users (C) Jul 26, 2011 Under these facts, the prospective applicant failed to seek to acquire permanent residence within 1 year of visa availability because the prospective applicant failed to apply for adjustment of status during the 1-year period between March 1, 2020, and March 1, 2021, when a visa was continuously available to file an adjustment of status application. The prospective applicant decides not to apply for adjustment of status between October 1, 2020, and the end of January 2021. This guidance is effective immediately and applies to adjustment of status applications we adjudicate on or after Feb. 14, 2023. If the prospective applicant has a priority date in their country of chargeability and preference category that is later than the Final Action Date, then a visa is no longer available to them for accepting and processing their application during the given month. [^ 15] See Part M, Asylee Adjustment, Chapter 2, Eligibility Requirements, Section C, Derivative Asylee Continues to be the Spouse or Child of the Principal Asylee [7 USCIS-PM M.2(C)]. It is important to note that this NVC-generated assessment letter will not hold up the qualification of the case for appointment at post. In order for the immigrant visa to be considered available for CSPA purposes, two conditions must be met: The visa must be available for the immigrant preference category and priority date. Such provisions and details regarding eligibility are described in the following subsections. and write this SAMPLE letter to the NVC when sending the documents. You will receive instructions concerning interview preparation in the appointment letter that you will receive from the NVC. 6 USCIS-PM G.1 - Chapter 1 - Purpose and Background, 6 USCIS-PM G.2 - Chapter 2 - Eligibility Requirements, 7 USCIS-PM A.3 - Chapter 3 - Filing Instructions, 7 USCIS-PM A.6 - Chapter 6 - Adjudicative Review, 7 USCIS-PM B.2 - Chapter 2 - Eligibility Requirements, 7 USCIS-PM B.8 - Chapter 8 - Inapplicability of Bars to Adjustment. The month . When the visa becomes available again, the applicants CSPA age is calculated based on the new visa availability date. If a continuous 1-year period of visa availability elapsed and the applicant did not seek to acquire during the 1-year period, the applicant cannot benefit from the age-out protections of the CSPA. As it takes a long time to get Greencard in many categories, many dependent children may age-out while waiting and are no longer be eligible as dependents to get a green card. Share sensitive information only on official, secure websites. An adjustment applicant may satisfy the sought to acquire requirement by any one of the following: Properly filing an Application to Register Permanent Residence or Adjust Status (Form I-485);[41], Submitting a completed Immigrant Visa Electronic Application (Form DS-260), Part I to the DOS;[42], Paying the immigrant visa fee to DOS;[43], Paying the Affidavit of Support Under Section 213A of the INA (Form I-864) review fee to DOS (provided the applicant is listed on the Affidavit of Support);[44] or, Having a properly filed Application for Action on an Approved Application or Petition (Form I-824) filed on the applicants behalf. This is referred to as the sought to acquire requirement. NVC will send another invoice for both of your child once the visa date/priority date confirmed that they are qualified for CSPA. For more information, see Part F, Special Immigrant-Based (EB-4) Adjustment [7 USCIS-PM F]. [^ 38] There are two ways in which a visa may become unavailable for accepting and processing an adjustment of status application. [^ 32] The rank number is the number following the two-letter region code and should correspond with cut-off numbers available in the DOS Visa Bulletin. The applicant already had a continuous 1-year period in which to seek to acquire. The Immigration and Nationality Act (INA) defines a child as a person who is both unmarried and under 21 years old. Child of LPR (F2A) Becomes Child of a U.S. Citizen (Immediate Relative). Approval Date * Child Status Protection Act Date Of Birth* Priority Date* Approval Date* Date when Petition Became Current * UNDERSTAND THE TERMS Priority Date It is the date when your Petition was filed. Share sensitive information only on official, secure websites. In order to include his or her child(ren) on the self-petition as derivatives, the child(ren) must be under the age of 21 and unmarried when the Form I-360 is filed, regardless of whether the child(ren) had a separate or approved Form I-130 when the Form I-360 was filed.[14]. The applicant also files an adjustment of status application based on the second Form I-140. A previously filed Form I-824 that was denied because the principal applicant's adjustment application had not yet been approved may serve as evidence of having sought to acquire. See 9 FAM 502.1-1(D)(6), Sought to Acquire LPR Status Provision, for more information regarding how overseas applicants may satisfy the sought to acquire requirement in the consular processing context. 5 There are exceptions to this rule for VAWA self -petitioners, and qualifying self petitioning widow(er)s of U.S. citizens. Since the prospective applicant only had 4 months of time in which to seek to acquire during the initial period of availability, the prospective applicant has a full 1-year period beginning October 1, 2021, in which the prospective applicant may seek to acquire. If we previously denied your adjustment of status application, but you believe your CSPA age calculation is under 21 under this policy guidance, you may file a motion to reopen your application using a Notice of Appeal or Motion (Form I-290B). Once a Processing Complete Letter has been issued, NVC "closes" the file and places it in a queue for future use. If your LPR parent filed a Form I-130 for you as his or her child and then your parent became a U.S. citizen before you turned 21, your age freezes on the date your parent became a citizen. See Part M, Asylee Adjustment, Chapter 2, Eligibility Requirements, Section C, Derivative Asylee Continues to be the Spouse of Child of the Principal Asylee, Subsection 2, Derivative Asylees Ineligible for Adjustment of Status [7 USCIS-PM M.2 (C)(2)]. Child Status Protection Act (CSPA) Alert: On Feb. 14, 2023, USCIS issued policy guidance in the USCIS Policy Manual to update when an immigrant visa "becomes available" for the purpose of calculating Child Status Protection Act (CSPA) age for noncitizens seeking lawful permanent resident status in a preference category. [15], CSPA allows children who turn 21 years old after a refugee application is filed but prior to adjudication to continue to be classified as children and remain eligible for derivative refugee status. Even though visas are available to a principal applicant and derivative child based on their priority date and country of chargeability in both October and November, the derivative child does not apply for adjustment of status in October or November (while the principal does apply). In order to calculate an adjustment applicants CSPA age according to the formula above, the officer must first determine the age at time of visa availability. That is accomplished by filing certain documents within one year of visa availability. The formula for determining the length of time the petition was pending is as follows: Approval Date - Filing Date = Pending Time. On February 1, 2021, a visa is no longer available to the prospective applicant under either chart and therefore, the prospective applicant is no longer eligible to file an adjustment of status application. If you think, you are eligible under CSPA then you must write letters to NVC, Consulate and INS claiming your eligibility to speed up processing on your file. The NVC did its CSPA analysis when the priority date became current using Chart A, which was on Oct. 1, 2016. If the applicant does not seek to acquire within 1 year of visa availability although the visa was available for a continuous 1-year period, the applicant cannot benefit from the age-out protections of the CSPA. This may be beneficial because . The derivative child does not have an available visa based on the Final Action Dates chart in December 2020, and cannot apply during that month. Step 2: Creating A User Account and Scheduling Your Visa Appointment Go to www.ustraveldocs.com/pk/ and create a user account. [^ 39] See INA 203(h)(1)(A). To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. [^ 31] For DVs, the qualifying petition is the DV Program electronic entry form. So long as the child was under 21 on the date of the interview, he or she will not age out of eligibility for derivative refugee status or adjustment of status. [^ 46] If a derivative child has a pending adjustment application and USCIS approves the principal applicants request to transfer the underlying basis of their adjustment application to a different immigrant category based on another approved petition, then the date that the transfer request is received by USCIS is the date used to determine whether the derivative child met the sought to acquire requirement. In between we also sent an email to NVC to know the status of our CSPA application for which they replied on 22nd July 2016 like this Quote This case is currently under review for applicability of the Child Status Protection Act (CSPA). Sample of CSPA aged appeal letter to NVC (The Child Status Protection Act) Emily Huynh 413 subscribers Subscribe 45 Share 2.5K views 2 years ago This video shows you how to write a letter. However, you may choose to opt out of the automatic conversion and stay in second preference classification (F2B) if the waiting time for the second preference visa is shorter than the waiting time for the first preference visa. On April 1, 2021, a visa is no longer available to the prospective applicant. Adjustment applicants who fail to fulfill the sought to acquire requirement within 1 year of visa availability may still be able to benefit from CSPA if they can establish that their failure to meet the requirement was the result of extraordinary circumstances.[50]. U.S. Examples of extraordinary circumstances that may warrant a favorable exercise of discretion include, but are not limited to: Serious illness or mental or physical disability of the applicant during the 1-year period; Legal disability, such as instances where the adjustment applicant suffered from a mental impairment, during the 1-year period; Instances where a timely adjustment application was rejected by USCIS as improperly filed and was returned to the applicant for corrections where the deficiency was corrected and the application re-filed within a reasonable period thereafter; Death or serious illness or incapacity of the applicants attorney or legal representative or a member of the applicants immediate family; and.