USCIS Changes Guidance on Immigrant Visa Availability for Child Status Protection Act Eligibility

US Citizenship and Immigration Services (USCIS) has issued new guidance in its policy manual to update the calculation of a noncitizen’s age for certain situations under the Child Status Protection Act (CSPA). This Act was created to protect noncitizen children from losing eligibility to obtain lawful permanent resident status if they turn 21 during the immigration process. The USCIS has changed the way they calculate when an immigrant visa number “becomes available” to noncitizens applying for family-sponsored or employment-based visas to determine if they are under the age of 21.

Previously, USCIS only used the Final Action Date chart in the Department of State’s Visa Bulletin to calculate the availability of a visa. However, with the new policy, USCIS will now also use the Dates for Filing chart to determine eligibility. This will provide more certainty for noncitizens with pending applications who may now have a CSPA age that is under 21 based on the new guidance. If eligible, they will be able to apply for employment and travel authorization based on their pending adjustment of status application and will not lose any previously issued employment or travel authorization.

Noncitizens with previously denied adjustment of status applications may file a motion to reopen their application using Form I-290B, Notice of Appeal or Motion. However, such motions must generally be filed within 30 days of the decision. USCIS may, in its discretion, excuse the untimely filing of the motion if the noncitizen demonstrates that the delay was reasonable and beyond their control.

While this policy change will not prevent all children from aging out before an immigrant visa is available to them, USCIS continues to explore all options available under the law to aid this population. The Department of Homeland Security regulatory agenda includes an anticipated notice of proposed rulemaking to improve the regulations governing adjustment of status to lawful permanent residence and related immigration benefits. The new guidance is effective immediately and applies to pending applications.