– by Julia Funke, Esq. On August 24, USCIS issued additional policy guidance regarding the “sought to acquire” requirement under the Child Status Protection Act (CSPA).  The new guidance offers helpful clarifications following the February 2023 policy update, further expanding access to much-needed relief. USCIS has confirmed that it will consider the February 2023 policy change to be an extraordinary circumstance that may excuse an applicant’s failure to meet the “sought to acquire” requirement, which is necessary to retain CSPA protections. Overall, this announcement is a positive signal from USCIS that they intend to allow as many people as possible to benefit from the CSPA policy change, even those who may have otherwise been ineligible.

Background

Back in February, USCIS issued updated guidance regarding when an immigrant visa number “becomes available” for the purpose of calculating the noncitizen’s age under CSPA. Previously, USCIS considered a child’s age “frozen” if a visa number was available under the Final Action Date Chart of the Visa Bulletin at the time the I-485 application was filed or, in the consular context, at the time an immigrant visa was sought through the Department of State. Under the revised policy, USCIS now determines visa availability using the Dates for Filing chart, when applicable. This means if USCIS announces it is using the Dates for Filing chart in any given month, then that chart will apply for CSPA purposes. In the consular processing context, the same basic principles apply. Similar to USCIS, NVC uses the Dates for Filing chart to let immigrant visa applicants know that they should get ready to submit the relevant documentation to the U.S. Consulates. If NVC uses the Dates for Filing chart to begin the consular process, the Dates for Filing chart will be used for CSPA purposes.

While the February 2023 policy change offered much-needed relief in an area of immigration law that has been historically plagued by lengthy delays, it also created some confusion. Namely, how will the updated policy be applied and who will be eligible for relief at this time? When the policy change was announced, USCIS explained that those with previously denied I-485 applications due to “aging out” could file a Motion to Reopen even if the denial was issued more than 30 days ago. USCIS explicitly stated that an untimely motion may be excused if the delay was reasonable and beyond the applicant’s control, although the Agency declined to expressly confirm the policy change itself would meet this burden.

Complicating things further, the announcement was silent regarding those who received visa refusals for “aging out” in the consular processing context. However, the USCIS Policy Manual confirms that the Child Status Protection Act applies to “both noncitizens abroad who are applying for an immigrant visa through the Department of State (DOS) and noncitizens physically present in the United States who are applying for adjustment of status through USCIS.” In the Policy Manual, USCIS emphasizes that while Chapter 7 primarily focuses on the impact of CSPA on adjustment applicants, the “same principles generally apply to noncitizens seeking an immigrant visa through DOS.” As such, the February 2023 policy change applies to those with visa refusals in the consular context as well. On this basis, ILBSG has been fighting visa refusals based on “aging out” since the USCIS policy change was announced.

While many people have begun challenging past I-485 denials and visa refusals based on the updated CSPA policy, there have been some questions about what relief may be available, if any, to those who never applied in the first place due to the past policy. Now, USCIS is offering some answers.

 

Expanded CSPA Relief

In order to retain Child Status Protection Act protections, an applicant must meet three basic requirements: (1) The applicant’s “CSPA age” must be 21 at the time of visa availability, (2) the applicant must meet the “sought to acquire” requirement within one year of visa availability, and (3) the applicant must remain unmarried to qualify as an “unmarried child under 21” for immigration purposes.

While the previous USCIS policy change announcement addressed when a visa becomes available, no further guidance regarding the other requirements was offered. Now, USCIS has released further guidance addressing the “sought to acquire” requirement and clarifying what will be considered an extraordinary circumstance to excuse this requirement. The USCIS Policy Manual confirms that if the applicant can establish that the failure to satisfy the sought to acquire requirement within 1 year was the result of “extraordinary circumstances,” USCIS may excuse the applicant from the requirement as an exercise of discretion. USCIS has now confirmed that the February 2023 policy change is sufficient to show extraordinary circumstances, provided that the delay in filing the I-485 application is reasonable under the circumstances. USCIS stated that “the reasonableness of the delay is determined from August 24, 2023, the date USCIS is publishing this policy considering the February 14, 2023, policy change to be an extraordinary circumstance.” This means if an applicant previously chose not to file the I-485 application or otherwise satisfy the “sought to acquire” requirement due to the previous CSPA policy, USCIS will excuse the one-year requirement as long as action is taken in a reasonable amount of time following the Agency’s announcement.

USCIS’ announcement not only benefits those who may not have applied to adjust their status due to the previous CSPA policy, but it is also a positive sign from USCIS regarding how they plan to treat these issues. If USCIS considers the policy change sufficient to constitute extraordinary circumstances to excuse the “sought to acquire” requirement, it is highly likely USCIS will also consider the policy change sufficient to excuse an untimely motion to reopen for previously denied cases (if they are filed in a reasonable amount of time following the policy change). Finally, by issuing formal guidance to invite those who may have considered themselves ineligible to apply for relief under the new policy, USCIS is strongly signaling that it intends for the new CSPA policy to positively impact as many people as possible.

If you have questions about CSPA or believe you may be eligible for relief under the new policy, reach out today. You can make an appointment here to discuss the details of your specific case. At ILBSG, we have extensive experience handling CSPA-related matters. We’ll make sure you get the right advice.

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