USCIS Issues New Guidance to Protect Foreign Nationals from Aging Out of Green Card Eligibility

The United States Citizenship and Immigration Services (USCIS) has issued updated guidance under the Child Status Protection Act (CSPA) to provide greater protection to foreign nationals against aging out of their eligibility to obtain a green card as a derivative of their parent. The new guidance, issued on Thursday, refines a policy introduced in February 2023 and aims to address issues related to calculating the age of applicants eligible for CSPA protections.

The Child Status Protection Act, enacted in 2001, was designed to prevent applicants for immigrant visas and green cards from “aging out” due to delays in government processing times. It’s especially relevant to individuals seeking lawful permanent residence as a derivative of their parent under family-based and employment-based immigration categories. Generally, for a child to be eligible for such derivative status, they must be under the age of 21.

The USCIS’s recent guidance aims to tackle the challenge of determining an applicant’s age under CSPA provisions when more than a year has passed since their priority date became current according to the State Department’s Visa Bulletin Dates for Filing. Under the previous policy, USCIS considered the “Final Action Dates” listed in the Visa Bulletin for CSPA age calculations. This approach excluded applicants who filed under the “Dates for Filing” chart, causing uncertainty for many applicants about whether they qualified for CSPA protections.

The February 2023 USCIS policy rectified this issue by recognizing the “Dates for Filing” chart for age calculations, thereby expanding the pool of applicants eligible for CSPA protections. This shift in calculation effectively advanced the date on which an immigrant visa is considered available in numerous cases, resulting in a lower calculated CSPA age for many foreign nationals.

However, the change in policy inadvertently moved up the deadline by which a foreign national needed to file their adjustment of status application to lock in the adjusted, lower age. This situation posed a challenge for some applicants, as they might have missed the one-year deadline for filing their adjustment application under the new visa availability date.

To address this concern, the new USCIS policy clarifies that a foreign national’s inability to file their adjustment application within one year of the revised visa availability date qualifies as an extraordinary circumstance. This means that even if more than a year has passed since their priority date became current under the “Dates for Filing,” USCIS may still accept an adjustment application and grant CSPA protections.

This updated guidance offers a solution for individuals who, due to unforeseen circumstances or confusion resulting from the change in policy, were unable to file their adjustment applications within the one-year timeframe. By allowing USCIS to exercise discretion in accepting late adjustment applications, the agency aims to ensure that foreign nationals do not lose out on CSPA protections merely due to timing challenges.

The USCIS’s commitment to refining and expanding policies related to CSPA underscores its dedication to providing fair and equitable opportunities for foreign nationals seeking to obtain lawful permanent residence in the United States. This recent guidance aligns with broader efforts to streamline immigration processes and remove barriers that could hinder eligible individuals from pursuing their dreams of living and working in the country.