by Julia Funke, Esq. – ILBSG is happy to announce that we have received an I-485 approval based on the updated CSPA policy announced in February 2023. The I-485 application was filed nearly 5 years after the priority date became current under the Final Action Chart for a client who had aged out at that time based on the previous CSPA guidance. USCIS’ swift adjudication of the delayed I-485 application is a positive signal from USCIS that it intends to retroactively apply the updated CSPA policy and provide relief to as many people as possible.

Background:

In February 2023, USCIS issued updated guidance regarding when an immigrant visa number “becomes available” for the purpose of calculating the noncitizen’s age under the Child Status Protection Act. 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.

Later, in August 2023, USCIS announced additional policy guidance regarding the “sought to acquire” requirement under CSPA. To retain protections under CSPA, 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.

To meet the sought-to-acquire requirement, an individual must pursue lawful permanent residence within one year of when the visa becomes available (through filing an I-485, submitting a DS-260, or other actions outlined by the policy manual). In the August announcement, USCIS confirmed that the February 2023 policy update will qualify as an extraordinary circumstance which may excuse an applicant’s failure to meet the “sought to acquire” requirement, provided that the delay in filing the I-485 application is reasonable under the circumstances. USCIS explained 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.”

Essentially, USCIS confirmed that if an applicant previously chose not to file the I-485 application or otherwise failed to satisfy the “sought to acquire” requirement because they believed they had aged out under the previous CSPA policy, USCIS will excuse the one-year requirement if action is taken in a reasonable amount of time following the August 2023 announcement.

Client Success Story:

Following USCIS’ updated guidance and subsequent announcement, ILBSG pursued relief for an individual who had previously aged out of a derivative green card through his parents. The applicant’s priority date became current under the Dates for Filing Chart of the visa bulletin in October 2015. NVC had initiated the process by that point and Applicant submitted his DS-260 in March 2016. Later, the priority date was retrogressed and would not become current under the Dates for Filing Chart again until August 2017. The priority date did not become current under the Final Action Chart until December 2018. By that time, the Applicant had aged out under the previous CSPA policy. When the interview was scheduled for his parents, the Applicant was not included. He never received a decision on his visa application; they simply stopped processing it.

In March 2023, following USCIS’s initial announcement, ILBSG filed a Motion for Reconsideration and Request for Reinstatement of the NVC process with the consulate. We argued that the Applicant had never received a decision and processing should resume, as he remains eligible for a visa based on the updated policy. After USCIS announced it would allow for delayed I-485 applications based on the updated CSPA policy, ILBSG swiftly filed an I-485 application as well.  The applicant was in a unique position to take advantage of the new relief available, as he was currently in the U.S. studying under an F-1 visa and therefore eligible to adjust their status. You must be in the U.S. in a valid nonimmigrant status to file an I-485 application.

We filed the I-485 application on September 15, 2023, explaining the Applicant’s eligibility in the cover letter and reiterating our previous arguments from his consular motion. On November 29, 2023, just 75 days later, the I-485 application was approved.

This is an overwhelmingly positive result for our client and an encouraging development for all similarly situated individuals. While many are waiting for results for Motions for Reconsideration filed with both USCIS and NVC/the consulates, USCIS’ swift action on the delayed I-485 application serves as a positive sign that USCIS intends to retroactively apply the new CSPA guidance and provide relief to as many affected individuals as possible.

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

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