USCIS Updates Child Status Protection Act (CSPA) Age Calculation for Certain Adjustment of Status Applicants

U.S. Citizenship and Immigration Services (USCIS) has updated the USCIS Policy Manual to clarify when an immigrant visa number becomes available for calculating the age of some CSPA adjustment of status applicants.  

Overview  

Generally, a child must be under the age of 21 to obtain lawful permanent residence status in the U.S. based on a parent’s approved immigrant petition. The rule applies to both employment-based and family-based applicants. If children turn 21 during the immigration process, they “age out” and are generally no longer eligible to immigrate with their parents based on a parent’s petition. The CSPA was enacted in 2002 to protect certain noncitizen children from losing their eligibility to obtain lawful permanent residence through a parent’s approved visa petition by calculating the child’s age based on when an immigrant visa number “becomes available.” 

Under the new guidance, which became effective immediately on February 14, 2023, USCIS makes a key clarification on when an immigrant visa number “becomes available” for the purposes of calculating a child’s age under the CSPA. The USCIS Policy Manual was updated to clarify that USCIS will use the “Dates for Filing” chart in the Department of State’s monthly  Visa Bulletin, rather than only using the Final Action Dates chart.  

Applicants may reopen a previously denied adjustment of status application that were decided before this update by filing a motion using Form I-290B, Notice of Appeal or Motion. The motion must generally be filed within 30 days of USCIS’s decision. USCIS has the discretion to accept or deny motions filed after the 30-day window. Motions filed late may be accepted if the applicant demonstrates that the delayed filing was beyond their control and reasonable.  

Looking Ahead  

USCIS notes that the new policy will not prevent all children from aging out before an immigrant visa becomes available, and it does not prevent children from losing their nonimmigrant status acquired through their parents when they turn 21.  

Envoy is pleased to provide you this information, which was prepared in collaboration with Jaclyn Pettit, who is a  Managing Attorney at Global Immigration Associates (GIA), one of the two independent U.S. law firms Envoy exclusively works with on the Envoy Platform (the "U.S. Law Firms").