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	<title>Child Status Protection Act Archives - International Legal and Business Services Group</title>
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		<title>Child Status Protection Act Age Calculation Update Announced by USCIS</title>
		<link>https://bizlegalservices.com/2024/09/27/child-status-protection-act-age-calculation-update-announced-by-uscis/?utm_source=rss&#038;utm_medium=rss&#038;utm_campaign=child-status-protection-act-age-calculation-update-announced-by-uscis</link>
		
		<dc:creator><![CDATA[Admin]]></dc:creator>
		<pubDate>Fri, 27 Sep 2024 19:04:49 +0000</pubDate>
				<category><![CDATA[News]]></category>
		<category><![CDATA[Child Status Protection Act]]></category>
		<category><![CDATA[CSPA]]></category>
		<guid isPermaLink="false">https://bizlegalservices.com/?p=123194</guid>

					<description><![CDATA[<p>USCIS announced updates to the age calculation for individuals who demonstrate extraordinary circumstances under the Child Status Protection Act.</p>
<p>The post <a href="https://bizlegalservices.com/2024/09/27/child-status-protection-act-age-calculation-update-announced-by-uscis/">Child Status Protection Act Age Calculation Update Announced by USCIS</a> appeared first on <a href="https://bizlegalservices.com">International Legal and Business Services Group</a>.</p>
]]></description>
										<content:encoded><![CDATA[<p>The process to calculate the Child Status Protection Act (CSPA) age in specific circumstances was updated by U.S. Citizenship and Immigration Services (USCIS). In the update, USCIS specifies that noncitizens who show extraordinary circumstances may be excused from the “sought to acquire” age requirement. The CSPA freezes the age of a child at a certain point in the immigration process, allowing them to retain their child status even if they turn 21 before the process is complete. Specifically, updates on how to treat the calculation with extraordinary circumstances in periods of retrogression of visa availability is addressed.</p>
<p>For applicants who show extraordinary circumstances, the CSPA age is calculated using the date the immigrant visa first became available, as long as the visa is continuously available for one year, without any period of unavailability. As an example, if retrogression occurs within that one-year period, a different date is used. In those situations, USCIS will calculate the CSPA age for the applicant with extraordinary circumstances using the date the visa first became available. The extraordinary circumstances must pertain to a basis for not previously applying for adjustment of status prior to visa availability. The update is effective immediately and includes all pending applications on or after September 25, 2024.</p>
<p>USCIS published <a href="https://www.uscis.gov/green-card/green-card-processes-and-procedures/child-status-protection-act-cspa" target="_blank" rel="noopener">updates</a> in 2023 to their policy guidance addressing when an immigrant visa is considered available for CSPA calculations. Following that update, feedback was received addressing how the age calculation is affected by extraordinary circumstances before the visa becomes available, either due to retrogression or which chart USCIS designates for filing. The policy did not address how the CSPA age calculation is affected by visa retrogression and extraordinary circumstances. This update outlines the process when those situations occur.</p>
<p>If you have questions about the Child Status Protection Act (CSPA) or any other U.S. immigration related issue, <a href="https://bizlegalservices.com/contact/">contact us at ILBSG</a>. Our clients work directly with attorneys to ensure they get the right advice for their specific situations.</p>
<p>The post <a href="https://bizlegalservices.com/2024/09/27/child-status-protection-act-age-calculation-update-announced-by-uscis/">Child Status Protection Act Age Calculation Update Announced by USCIS</a> appeared first on <a href="https://bizlegalservices.com">International Legal and Business Services Group</a>.</p>
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		<post-id xmlns="com-wordpress:feed-additions:1">123194</post-id>	</item>
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		<title>Our Perspective: USCIS Announces Additional Child Status Protection Act Relief</title>
		<link>https://bizlegalservices.com/2023/08/25/child-status-protection-act/?utm_source=rss&#038;utm_medium=rss&#038;utm_campaign=child-status-protection-act</link>
		
		<dc:creator><![CDATA[Admin]]></dc:creator>
		<pubDate>Fri, 25 Aug 2023 13:50:44 +0000</pubDate>
				<category><![CDATA[News]]></category>
		<category><![CDATA[Child Status Protection Act]]></category>
		<category><![CDATA[CSPA]]></category>
		<guid isPermaLink="false">https://bizlegalservices.com/?p=122065</guid>

					<description><![CDATA[<p>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.</p>
<p>The post <a href="https://bizlegalservices.com/2023/08/25/child-status-protection-act/">Our Perspective: USCIS Announces Additional Child Status Protection Act Relief</a> appeared first on <a href="https://bizlegalservices.com">International Legal and Business Services Group</a>.</p>
]]></description>
										<content:encoded><![CDATA[<p><strong><em>&#8211; by Julia Funke, Esq.</em></strong> 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.</p>
<p><strong>Background </strong></p>
<p>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 <a href="https://bizlegalservices.com/2023/02/17/recently-revised-cspa-policy-impact-on-consular-processing-cases/">consular processing context,</a> 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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>&nbsp;</p>
<p><strong>Expanded CSPA Relief</strong></p>
<p>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.</p>
<p>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.</p>
<p>USCIS’ <a href="https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20230824-CSPA.pdf" target="_blank" rel="noopener">announcement</a> 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.</p>
<p>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 <a href="https://ilbsg.setmore.com/julia-funke-esq">here</a> 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.</p>
<p>The post <a href="https://bizlegalservices.com/2023/08/25/child-status-protection-act/">Our Perspective: USCIS Announces Additional Child Status Protection Act Relief</a> appeared first on <a href="https://bizlegalservices.com">International Legal and Business Services Group</a>.</p>
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		<post-id xmlns="com-wordpress:feed-additions:1">122065</post-id>	</item>
		<item>
		<title>Breaking News: USCIS Reinterprets Child Status Protection Act, Freezes Age Based on Dates of Filing Chart</title>
		<link>https://bizlegalservices.com/2023/02/14/breaking-news-uscis-reinterprets-child-status-protection-act-freezes-age-based-on-dates-of-filing-chart/?utm_source=rss&#038;utm_medium=rss&#038;utm_campaign=breaking-news-uscis-reinterprets-child-status-protection-act-freezes-age-based-on-dates-of-filing-chart</link>
		
		<dc:creator><![CDATA[Nickname]]></dc:creator>
		<pubDate>Tue, 14 Feb 2023 22:12:57 +0000</pubDate>
				<category><![CDATA[News]]></category>
		<category><![CDATA[Child Status Protection Act]]></category>
		<category><![CDATA[CSPA]]></category>
		<category><![CDATA[USCIS]]></category>
		<guid isPermaLink="false">https://bizlegalservices.com/?p=119902</guid>

					<description><![CDATA[<p>USCIS issued updated guidance under the Child Status Protection Act (CSPA). USCIS will now use the Dates for Filing Chart for calculating a child’s age under CSPA.</p>
<p>The post <a href="https://bizlegalservices.com/2023/02/14/breaking-news-uscis-reinterprets-child-status-protection-act-freezes-age-based-on-dates-of-filing-chart/">Breaking News: USCIS Reinterprets Child Status Protection Act, Freezes Age Based on Dates of Filing Chart</a> appeared first on <a href="https://bizlegalservices.com">International Legal and Business Services Group</a>.</p>
]]></description>
										<content:encoded><![CDATA[<p>USCIS issued updated guidance regarding when an immigrant visa number “becomes available” for purpose of calculating the noncitizen’s age under the Child Status Protection Act (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. Now, the USCIS Policy Manual has been updated to reflect that USCIS will instead use the Dates for Filing Chart for calculating a child’s age under CSPA. In other words, the child’s age will be “frozen” when the I-485 application is filed based on the Date of Filing Chart, even if a visa number is not yet available under the Final Action Chart.</p>
<p>This provides desperately needed relief for those at risk of aging out due to lengthy processing times and persistent visa backlogs.</p>
<p>As background, for a child to obtain a green card in the U.S. based on a parent’s approved immigrant visa, the child must be under 21 years of age. If the child turns 21 at some point during this process, the child is considered to have “aged out” and, therefore, is no longer eligible as a derivative applicant.</p>
<p>The Child Status Protection Act (CSPA) was enacted by Congress to protect certain children in this situation from losing eligibility for derivative lawful permanent residence, in recognition that many children were “aging out” due to backlogs and lengthy processing times. CSPA provides a method for calculating a child’s age to see if they meet the definition of a child for immigration purposes and, therefore, remain eligible for derivative permanent residence.</p>
<p>Under CSPA, a child’s age is calculated by looking at the actual age when the priority date for the green card became current or the date when the underlying immigrant petition (I-130, I-140, I-360, I-536, or diversity visa) was approved, if a visa is immediately available at the time of approval. The number of days the immigrant petition was pending is then subtracted from that age, to determine the child’s “CSPA age.” If an individual’s CSPA age is under 21, the individual meets the definition of a “child” for immigration purposes and, therefore, remains eligible for the derivative green card. In simple terms, the calculation is:</p>
<p><em>Age at Time of Visa Availability – Pending Time = CSPA Age</em></p>
<p>Previously, USCIS determined “visa availability” for purposes of this calculation using the Final Action Chart of the Visa Bulletin. Now, USCIS will instead consider the Dates of Filing Chart for CSPA age calculations. This is great news since the Dates of Filing Chart typically includes much earlier dates.</p>
<p>For example, let’s say an applicant is 21 years and 4 months old at the time the priority date for his parent’s I-140 petition becomes current under the Dates of Filing Chart. That month, USCIS announces it will accept I-485 applications based on the Dates of Filing Chart, so the applicant wants to know if he is eligible to file his green card application even though he’s already turned 21. If his parent’s I-140 petition was pending for 6 months, the CSPA calculation would be as follows:</p>
<p><em>21 Years and 4 months – 6 months = 20 Years and 10 months</em></p>
<p>In this scenario, the applicant’s CSPA age is under 21. As such, he remains eligible for derivative green card status and can file the I-485 application as a “child” for immigration purposes. When he files his I-485 application, it will effectively “freeze” his age under CSPA.</p>
<p>As explained in the USCIS Policy Manual<a href="#_ftn1" name="_ftnref1">[1]</a> update, “the date USCIS considers a visa available for accepting and processing an adjustment of status application according to the USCIS website and the Visa Bulletin is also the date USCIS considers a visa available for CSPA purposes if the petition is already approved.” This means that if an individual’s priority date is “current” under the Date of Filing Chart and USCIS announces it will use the Date of Filing Chart that month (like in the example above), the visa will be considered available on the first date of that month for purposes of CSPA calculation.</p>
<p>This policy change is effective immediately and applies to all pending applications. This means that some noncitizens with pending applications based on the Dates of Filing Chart, who may have already “aged out” if their priority date never became current under the Final Action Chart, may now have a CSPA age under 21. If so, they remain eligible for a derivative green card.</p>
<p>As many of our readers may recall, between October – December 2020, USCIS allowed a high number of employment-based green card applicants from India and China to submit I-485 applications based on the Dates of Filing Chart of the Visa Bulletin during those months. Since that time, the Final Action Date chart has not advanced far enough for all those applications to be approved. Many of those who filed under the Dates of Filing Chart have since aged out. Now, since USCIS will calculate the CSPA age based on the Dates of Filing Chart, those affected will again become eligible for derivative green card status.</p>
<p>If an individual previously received an I-485 application denial based on having “aged out,” USCIS has announced it will accept a Motion to Reopen (MTR) using Form I-290B. While MTRs must typically be filed within 30 days of the decision, USCIS can accept an untimely filing if the delay was reasonable and beyond the noncitizen’s control. Here, the policy change justifies the delay, so USCIS will accept MTRs filed on this basis.</p>
<p>While <a href="https://www.uscis.gov/" target="_blank" rel="noopener">USCIS</a>’ announcement did not explicitly discuss consular processing, the same policy will benefit these individuals. The USCIS Policy Manual states that “in order for family-sponsored and employment-based preference and DV adjustment applicants to benefit from the CSPA age calculation, they must <strong>seek to acquire</strong> lawful permanent residence within 1 year of when a visa becomes available.” USCIS explains that the “sought to acquire” requirement may be satisfied through properly filing an I-485, submitting a completed DS-260, or paying the immigrant fee to the Department of State. As such, those who begin the consulate process based on an immigrant visa becoming available will likewise benefit from CSPA.</p>
<p>If you have questions about this Child Status Protection Act policy change or believe your application or eligibility may be affected as a result, please reach out to an <a href="https://bizlegalservices.com/contact/">ILBGS attorney today</a>. We are here to guide you.</p>
<p>&nbsp;</p>
<p><a href="#_ftnref1" name="_ftn1">[1]</a> https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-7</p>
<p>The post <a href="https://bizlegalservices.com/2023/02/14/breaking-news-uscis-reinterprets-child-status-protection-act-freezes-age-based-on-dates-of-filing-chart/">Breaking News: USCIS Reinterprets Child Status Protection Act, Freezes Age Based on Dates of Filing Chart</a> appeared first on <a href="https://bizlegalservices.com">International Legal and Business Services Group</a>.</p>
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		<post-id xmlns="com-wordpress:feed-additions:1">119902</post-id>	</item>
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		<title>CSPA, the Final Action Dates Chart, and Premium Processing Explained</title>
		<link>https://bizlegalservices.com/2021/10/28/cspa-explained/?utm_source=rss&#038;utm_medium=rss&#038;utm_campaign=cspa-explained</link>
		
		<dc:creator><![CDATA[Nickname]]></dc:creator>
		<pubDate>Thu, 28 Oct 2021 21:24:36 +0000</pubDate>
				<category><![CDATA[News]]></category>
		<category><![CDATA[Child Status Protection Act]]></category>
		<category><![CDATA[CSPA]]></category>
		<guid isPermaLink="false">https://bizlegalservices.com/?p=102527</guid>

					<description><![CDATA[<p>Understand how the U.S. Citizenship and Immigration Services (USCIS), the Department of State (DOS), and the Immigration and Nationality Act work together to manage immigrant status for individuals entering the U.S. under the age of 21. The CSPA, Final Action Dates, and Premium Processing are explained.  Key criteria, examples, and how retrogression affects these filings are reviewed in detail.</p>
<p>The post <a href="https://bizlegalservices.com/2021/10/28/cspa-explained/">CSPA, the Final Action Dates Chart, and Premium Processing Explained</a> appeared first on <a href="https://bizlegalservices.com">International Legal and Business Services Group</a>.</p>
]]></description>
										<content:encoded><![CDATA[<p>Understand how the U.S. Citizenship and Immigration Services (USCIS), the Department of State (DOS), and the Immigration and Nationality Act work together to manage immigrant status for individuals entering the U.S. under the age of 21. Key criteria, examples, and how retrogression affects these filings are explained.</p>
<h4>What is CSPA?</h4>
<p>The Immigration and Nationality Act states that unmarried sons and daughters are only eligible to be considered for immigrant status as “children” if they are under the age of 21 when a visa becomes available to them according to the Department of State (DOS) Visa Bulletin Final Action Dates chart.</p>
<p>However, U.S. Citizenship and Immigration Services (USCIS) has historically had large backlogs of cases for people who were born in countries that tend to have high numbers of people seeking visas, including people born in India and people born in mainland China. These backlogs are a result of the 7% per-country limit on the percentage of visas that can be issued to people born in that specific country each fiscal year.</p>
<p>The large backlog of cases at USCIS has caused some children, whose parents applied on their behalf before their 21<sup>st</sup> birthday, to subsequently “age out” (turn 21 and no longer be considered for “child” status) before their case was adjudicated. To prevent this from happening in the future, the <a href="https://www.uscis.gov/green-card/green-card-processes-and-procedures/child-status-protection-act-cspa" target="_blank" rel="noopener">Child Status Protection Act</a> (CSPA) was signed into law on August 06, 2002, to “freeze” the age of the child once both requirements are met: (1) the person has fulfilled the “sought to acquire” requirement and (2) a visa is available to him/her.</p>
<p>For family-based and employment-based filing, CSPA age is calculated by subtracting the number of days the underlying qualifying petition (I-130, I-140, or I-360) is pending from the applicant’s age on the date when a visa becomes available to him or her. According to the USCIS Policy Manual, visa availability is defined as “the date of petition approval or the first day of the month of the DOS Visa Bulletin that indicates availability for that immigrant preference category and priority date according to the Final Action Dates chart, whichever is later.”</p>
<p>To see whether a son or daughter may be qualified for “child” status under CSPA, please see the scenarios described below.</p>
<h4><em>How is age calculated when I have multiple approved petitions?</em></h4>
<p>According to the USCIS CSPA policy updated on November 13, 2020, CSPA age can only be calculated using the petition underlying the adjustment of status application.</p>
<p><strong><em>Example</em></strong></p>
<ol>
<li>A person received an I-140 approval from Company A. The person then moved to Company B, where a second, I-140 was filed and approved. The parents later filed an adjustment of status petition based on the second I-140 approval. Which I-140 approval is used to calculate the child’s CSPA age?
<ol>
<li>The child’s CSPA age will be calculated based on the second I-140 approval (from Company B) because this is the petition underlying the adjustment of status application.</li>
</ol>
</li>
</ol>
<p>&nbsp;</p>
<h4>What is the Final Action Dates chart, and why does it matter?</h4>
<p>Every month, the DOS releases the <a href="https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html" target="_blank" rel="noopener">Visa Bulletin</a>, which is a document stating who can apply for a visa according to their priority date. In recent years, USCIS releases two charts of dates every month: the Dates for Filing chart and the Final Action Dates chart.</p>
<p>USCIS chooses one chart every month to determine which people can begin their visa application process. The Dates for Filing chart allows people to start this process earlier. However, USCIS still uses the Final Action Dates chart to determine when a visa is available for children seeking protection under CSPA.</p>
<p>This means that if a family applies for visas using the Dates for Filing chart, the age of one or multiple of their children will not necessarily be protected because a visa is not considered available until the priority date becomes current according to the Final Action Dates chart. In these cases, a child may subsequently “age out.”</p>
<p>&nbsp;</p>
<h4>What is premium processing, and how does it relate to CSPA?</h4>
<p>Premium processing is a way to have the USCIS expedite the adjudication of your case, meaning they will determine whether your Form I-140 is approved within a shorter period of time.</p>
<p>It is advisable that if you have children between the ages of 15 and just under 21 and were born in any country with a high number of immigrants who are seeking visas, like India or mainland China, that you do NOT choose premium processing.</p>
<p>The longer pending period for an I-140 adjudication allows your children’s ages to remain “frozen” while waiting for a visa to become available according to the Final Action Dates chart, giving them a greater opportunity to not “age out” before a visa becomes available to them. See Scenario 2, part (c) for an example.</p>
<p>There are some exceptions when a person may still be advised to proceed with premium processing despite the risk of his or her children “aging out,” such as if a person is nearing the end of his or her visa limit, as with an H-1B or L-1 visa. For example, for a person who is in their fifth year of an H-1B visa and is nearing their six-year limit, it is recommended that this person chooses premium processing to mitigate the risk of overstaying his visa during the adjudication process of his other petitions.</p>
<p>&nbsp;</p>
<h4>What is a visa retrogression, and how is CSPA age calculated if it happens?</h4>
<p>A visa retrogression is when a priority date is current one month but is no longer current in the next month. This means that the cut-off date moves back to an earlier date. CSPA age when there is a retrogression largely depends on whether the retrogression happened before or after there was an application filed for an adjustment of status.</p>
<p>If the retrogression happens <em>before</em> there is an application filed for adjustment of status, then the child’s age will not be protected according to the date when the visa was first current. The child’s age will be calculated based on the new visa availability date according to the Final Action Dates chart.</p>
<p>If the retrogression happens <em>after</em> there is an application filed for adjustment of status, then the application will be held until the visa becomes available again. However, the child’s CSPA age is calculated according to the initial current date according to the Final Action Dates chart instead of the next current date after visa retrogression. USCIS’s examples on this are included here for further clarity:</p>
<p>&nbsp;</p>
<h4><em>Visa Retrogression: Application Filed Based on Dates for Filing Chart </em></h4>
<p>The applicant files an adjustment application in March based on the Dates for Filing chart. However, it is not until May 1 that the Final Action Dates chart indicates availability for the applicant’s immigrant preference category and priority date (based on the Final Action Dates chart). In July, the visa retrogresses.</p>
<p>In this case, USCIS calculates the applicant’s CSPA age using May 1 as the visa availability date. If the applicant’s calculated CSPA age was under 21, his or her CSPA age is locked in through final adjudication and USCIS holds the application until the visa becomes available again (based on the Final Action Dates chart).</p>
<p>&nbsp;</p>
<h4><em>Visa Retrogression: Application Filed Based on Final Action Dates Chart</em></h4>
<p>In May, the Final Action Dates chart indicates availability for the applicant’s immigrant preference category and priority date. The applicant files an adjustment application in June, and then the visa retrogresses in July (based on the Final Action Dates chart). In this case, USCIS calculates the applicant’s CSPA age using May 1 as the visa availability date (based on the Final Action Dates chart). If the applicant’s calculated CSPA age was under 21, his or her CSPA age is locked in through final adjudication and USCIS holds the application until the visa becomes available again.</p>
<h4></h4>
<h4>Additional Examples of How to Calculate CSPA Age</h4>
<h4><em>Scenario 1</em></h4>
<p>A father who is a green card holder files the Form I-130 petition on behalf of his daughter who is 20 years old at the time of application. The I-130 petition is pending for 4 months (from January 1, 2019 to May 1, 2019) before it gets approved. After 6 months (on November 1, 2019), the father then files for a Form I-485 petition on behalf of his daughter using the Dates for Filing chart. After 1 month, (on December 1, 2019), the priority date becomes current according to the Final Action Dates chart. The I-485 petition adjudicated after 3 months (on February 1, 2020). Does his daughter still qualify as a “child” at the time of visa availability?</p>
<ul>
<li>CSPA age is calculated as follows:
<ol>
<li>Age at time of visa availability – Pending time = CSPA age</li>
</ol>
</li>
<li>The age at the time of visa availability is defined as the time when a visa becomes available according to the Final Action Dates chart. A visa became available to the daughter on December 1, 2019. On that day, the daughter was 20 years and 11 months old.</li>
<li>The pending time is defined as the time that the underlying petition was pending. The underlying I-130 petition was pending for 4 months.</li>
<li>Therefore, the CSPA age is calculated as follows:
<ol>
<li>20 years and 11 months – 4 months = 20 years and 7 months old</li>
</ol>
</li>
<li>Because the calculated CSPA age is less than 21 years old, the daughter’s CSPA age of 20 years and 7 months will be “locked” throughout the adjudication process. Therefore, even though her biological age is 21 years and 1 month on February 1, 2020 when the case is adjudicated, she will still qualify for “child” status.</li>
</ul>
<p>&nbsp;</p>
<h4><em>Scenario 2</em></h4>
<p>A mother includes her son on her Form I-140 petition as a derivative, which is filed on January 1, 2019. At that time, her son is 20 years old. Because of the long wait times to have her case adjudicated, she opts for premium processing. Her petition is approved in 15 days, on January 15, 2019. After 8 months (on September 15, 2019), the mother files a Form I-485 adjustment of status petition on behalf of her son using the Dates for Filing chart. The mother’s priority date becomes current according to the Final Action Dates chart 8 months later (on May 15, 2020), at which point a visa is available. Does the son still qualify as a “child” at the time of visa availability?</p>
<ul>
<li>On May 15, 2020, the son is 21 years, 4 months, and 15 days old. The I-140 petition his mother filed on his behalf was pending for only 15 days. The CSPA age calculation is as follows:
<ol>
<li>Age at time of visa availability – Pending time = CSPA age</li>
<li>21 years and 4 months, and 15 days – 15 days = 21 years and 4 months</li>
</ol>
</li>
<li>Because the calculated CSPA age is over 21 years old, the son has “aged out” and is no longer qualified for “child” status.</li>
<li>One way to mitigate risk of a child “aging out” is to NOT opt for premium processing. In this case, if the mother did not choose to use premium processing and the I-140 petition was pending for 6 months (until July 1, 2019), then this additional pending time would have been subtracted from her son’s age at the time of visa availability. If all the other dates in the scenario remained constant and the son remained unmarried, then the calculation of his CSPA age would be as follows:
<ol>
<li>Age at time of visa availability – Pending time = CSPA age</li>
<li>21 years, 4 months, and 15 days – 6 months = 20 years, 11 months, and 15 days</li>
</ol>
</li>
</ul>
<ul>
<li>Because the son is under 21 years old, he would still be qualified for “child” status</li>
</ul>
<h4></h4>
<h4><em>Scenario 3 </em></h4>
<p>A priest chooses to concurrently file Form I-360 with Form I-485 on January 1, 2019, because his priority date is current according to the Dates for Filing chart. On the petition and application, he includes his son as a derivative, who is 20 years and 10 months old at the time of application. The I-360 petition is pending for 18 months before it gets approved and is adjudicated on June 1, 2020. The father’s priority date becomes current on December 1, 2020, according to the Final Action Dates chart, at which point a visa is available. Does the son still qualify as a “child” at the time of visa availability?</p>
<ul>
<li>On December 1, 2020, the son is 22 years and 10 months old. The I-360 petition his father filed was pending for 18 months. The CSPA age calculation is as follows:
<ol>
<li>Age at time of visa availability – Pending time = CSPA age</li>
<li>22 years and 10 months – 18 months = 21 years and 4 months</li>
</ol>
</li>
<li>Because the calculated CSPA age is over 21 years old, the son has “aged out” and is no longer qualified for “child” status.</li>
</ul>
<p>If you have questions about CSPA, Final Action Date Charts, or any other immigration-related issue, <a href="https://bizlegalservices.com/contact/">contact us at ILBSG</a>. We work with you to ensure you get the right advice for your specific situation.</p>
<p>The post <a href="https://bizlegalservices.com/2021/10/28/cspa-explained/">CSPA, the Final Action Dates Chart, and Premium Processing Explained</a> appeared first on <a href="https://bizlegalservices.com">International Legal and Business Services Group</a>.</p>
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