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For DV derivative applicants, the number of days the petition was pending is the period of time between the start of the DV Program registration period and the date of the DV selection letter. Transferring to a new basis will result in a new calculated CSPA age, as the amount of time the petition was pending will change as will the derivative beneficiarys age at the time of visa availability. If the prospective applicant has a priority date in their country of chargeability and preference category that is later than the Final Action Date, then a visa is no longer available to them for accepting and processing their application during the given month. [^ 2] The situation in which noncitizens can no longer be classified as children for immigrant visa purposes due to turning 21 is commonly referred to as aging out.. However, CSPA does not change the requirement that you must be unmarried in order to remain eligible for classification as a child. The NVC is not your "attorney", for free legal advice - Gurfinkel An applicant is listed as a derivative on an approved Form I-140 filed by their parents employer. However, you must remain unmarried in order to qualify. [^ 22] See INA 203(h)(1)(A). CSPA does not change the requirement that the applicant must be unmarried in order to remain eligible for classification as a child for immigration purposes. Alert: On Feb. 14, 2023, USCIS issued policy guidance in the USCIS Policy Manual to update when an immigrant visa becomes available for the purpose of calculating Child Status Protection Act (CSPA) age for noncitizens seeking lawful permanent resident status in a preference category. The visa remains available to the prospective applicant for accepting and processing their application according to the Dates for Filing chart (designated by USCIS) for 4 months, that is, through the end of January 2021. Officers should follow guidance in Age-Out Protections Afforded Battered Children Pursuant to The Child Status Protection Act and the Victims of Trafficking and Violence Protection Act (PDF, 104.96 KB), issued August 17, 2004. See9 FAM 502.6-4, Diversity Visa Processing. The noncitizen cannot benefit from the age-out protections of the CSPA. The letter format is on this forum. Unmarried Son or Daughter of LPR (F2B) Becomes Unmarried Son or Daughter of U.S. Citizen (F1). Examples of extraordinary circumstances that may warrant a favorable exercise of discretion include, but are not limited to: Serious illness or mental or physical disability of the applicant during the 1-year period; Legal disability, such as instances where the adjustment applicant suffered from a mental impairment, during the 1-year period; Instances where a timely adjustment application was rejected by USCIS as improperly filed and was returned to the applicant for corrections where the deficiency was corrected and the application re-filed within a reasonable period thereafter; Death or serious illness or incapacity of the applicants attorney or legal representative or a member of the applicants immediate family; and. This also applies to circumstances when USCIS approves a request to transfer the underlying basis of a pending adjustment of status application to a different immigrant category based on another approved petition. [^ 26] In addition to CSPA protections, VAWA self-petitioners and derivatives who turn 21 prior to adjusting status may be eligible for age-out protections provided in the Victims of Trafficking and Violence Protection Act (VTPVA) of 2000, Pub. A visa initially becomes available to the prospective applicant according to the Final Action Dates chart on March 1, 2020, which USCIS designated for use in that month. F4 and CSPA - VisaJourney This guidance is effective immediately and applies to adjustment of status applications we adjudicate on or after Feb. 14, 2023. At that point, USCIS would calculate CSPA age based on the derivatives age on December 1, 2021 (not October 1, 2020). To benefit from the CSPA age determination, applicant must seek to acquire lawful permanent residence within 1 year of the visa becoming available. You will receive instructions concerning interview preparation in the appointment letter that you will receive from the NVC. Pending time includes administrative review, such as motions and appeals, but does not include consular returns. The visa remains available to the prospective applicant through March 2021, that is, for a continuous 1-year period of visa availability. This technical update replaces all instances of the term alien with noncitizen or other appropriate terms throughout the Policy Manual where possible, as used to refer to a person who meets the definition provided in INA 101(a)(3) [any person not a citizen or national of the United States]. Note:Certain forms, including Form I-290B, have a filing fee. A preference applicant whose visa became available on or after August 7, 2001 who did not seek to acquire within 1 year of such visa availability but who would have qualified for CSPA coverage had he or she applied, but for prior policy guidance concerning the CSPA effective date, may still apply for adjustment of status. The applicant already had a continuous 1-year period in which to seek to acquire. [36], The applicants CSPA age is determined based on how long the applicants underlying petition was pending and the applicants age when a visa became available to the applicant or the petition is approved, whichever is later. The historical versions linked below reflect the pertinent policy in effect on that date and dates reflect when updates occurred. An applicant may only establish extraordinary circumstances due to ineffective assistance of counsel (the applicants legal representative or attorney) if he or she completes the following: The applicant must submit an affidavit explaining in detail the agreement that was entered into with counsel regarding the actions to be taken and what information, if any, counsel provided to the applicant regarding such actions; The applicant must demonstrate that he or she has made a good faith effort to inform counsel whose integrity or competence is being questioned of the allegations brought against him or her and that counsel has been given an opportunity to respond; and. The derivative applicants CSPA age is calculated using the petition underlying the principal beneficiarys adjustment of status application, in other words, the second Form I-140. The derivative may be eligible to retain the priority date from the first Form I-140, but the CSPA calculation uses the second petition, because this is the petition through which the principal beneficiary obtained adjustment of status and that forms the basis for the applicants adjustment of status application. The applicants CSPA age is calculated as follows: 21 years and 4 months - 6 months = 20 years and 10 months. This technical update replaces all instances of the term foreign national with alien throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [any person not a citizen or national of the United States]. In September 2015, DOS and USCIS announced a revision to the Visa Bulletin, which created two charts of dates. [48] From the date of visa availability, family-sponsored and employment-based preference and DV adjustment applicants have 1 year in which to seek to acquire permanent resident status in order to qualify for CSPA coverage. This may be beneficial because . The date a Form I-590 is considered filed is the date of the principal refugee parents interview with a USCIS officer. A lock ( A locked padlock ) or https:// means you've safely connected to the .gov website. In order to protect children from aging out of their cases at age 21, CSPA may extend the eligibility of the applicant, should the applicant meet the CSPA requirements. For derivative refugees, an adjustment applicants CSPA age is his or her age on the date the principal applicants Form I-590 is filed. Unlike derivative refugees, you must be unmarried in order to qualify for a grant of derivative asylum and to qualify for a Green Card under INA section 209. [^ 32] The rank number is the number following the two-letter region code and should correspond with cut-off numbers available in the DOS Visa Bulletin. The parent files an adjustment of status application based on the second Form I-140 and is approved. The applicant also files an adjustment of status application based on the second Form I-140. The derivative child does not have an available visa based on the Final Action Dates chart in December 2020, and cannot apply during that month. It is important to note that this NVC-generated assessment letter will not hold up the qualification of the case for appointment at post. [13], Similarly, the beneficiary of a pending or approved spousal Form I-130 may subsequently file a VAWA-based Form I-360. See Matter of O. Vazquez (PDF), 25 I&N Dec. 817 (BIA 2012). However, the derivative asylee may overcome this by providing evidence establishing the parent-child relationship, including evidence of the childs age, and a reasonable explanation as to why the derivative was not included on the principals Form I-589. If the applicant was under the age of 21 at the time of filing, the applicant is eligible for CSPA and will not age out. National Visa Center (NVC) Immigrant Visa Backlog Report Last updated February 2023 Since March 2020, the COVID-19 pandemic has dramatically affected the Department of State's ability to process immigrant visa applications. B BigJoe5 Registered Users (C) Jul 26, 2011 Since October 2015, the Visa Bulletin has featured two charts per immigrant preference category: USCIS designates one of the two charts for use by applicants each month. Once a Processing Complete Letter has been issued, NVC "closes" the file and places it in a queue for future use. The applicant may file an untimely motion to reopen or reconsider without a filing fee if: Special rules apply in cases where an adjustment applicant would otherwise age out on or after August 6, 2002. If you think, you are eligible under CSPA then you must write letters to NVC, Consulate and INS claiming your eligibility to speed up processing on your file. [2], Section 101(b)(1) of the Immigration and Nationality Act (INA) defines a child as a person who is unmarried and under 21 years old. The calculated age is the childs CSPA age. This allows some people to remain classified as children beyond their 21st birthday. [^ 31] For DVs, the qualifying petition is the DV Program electronic entry form. This chapter primarily focuses on the impact of CSPA on adjustment applicants, though the same principles generally apply to noncitizens seeking an immigrant visa through DOS.[8]. See Chapter 9, Death of Petitioner or Principal Beneficiary [7 USCIS-PM A.9] for more information. In order to benefit from CSPA as a family preference (including VAWA self-petition), employment-based preference, or DV applicant, you must seek to acquire lawful permanent resident status within 1 year of when a visa becoming available to you for filing an adjustment of status application. CSPA age is frozen on the date the Form I-360 is filed or the date the Form I-130 is automatically converted to a widow(er)s Form I-360. He said we need to write a letter to tell them why we believe. 7 USCIS-PM A.7 - Chapter 7 - Child Status Protection Act. A written request to transfer the underlying basis of the adjustment of status application also will meet the sought to acquire requirement, if we receive the request within 1 year of an immigrant visa becoming available in the new preference category. For more information about CSPA, see the following: An official website of the U.S. Department of Homeland Security, An official website of the United States government, To protect your privacy, please do not include any personal information in your feedback. [^ 40] VAWA preference cases are subject to the sought to acquire requirement, but VAWA IRs are not. Since the prospective applicant only had 4 months of time in which to seek to acquire during the initial period of availability, the prospective applicant has a full 1-year period beginning October 1, 2021, in which the prospective applicant may seek to acquire. The employer rescinds the parents job offer, but the parent receives a job offer from a second employer. Seek or sought to acquire is used as shorthand in this chapter to refer to this requirement. Secure .gov websites use HTTPS The adjustment applicant must have had one of the following approved or pending on or after the CSPAs effective date: a qualifying Petition for Alien Relative (Form I-130), Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360), or Application to Register Permanent Residence or Adjust Status (Form I-485); The applicant must have been under the age of 21 and unmarried at the time the qualifying Form I-130 or Form I-360 was filed; and, If the petitioner of a pending or approved IR spousal petition dies, the spousal Form I-130 automatically converts to a widow(er)s Form I-360. However, if the qualifying underlying form was approved prior to the effective date, an applicant who applies for adjustment of status after the effective date may still qualify for CSPA coverage. As it takes a long time to get Greencard in many categories, many dependent children may age-out while waiting and are no longer be eligible as dependents to get a green card. [^ 51] In Matter of O. Vazquez, the BIA ruled that extraordinary circumstances could warrant the exercise of discretion to excuse an applicant who failed to meet the sought to acquire requirement during the 1-year period. [^ 11] See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. Expedite/Age-Out/Follow-to-Join Cases - U.S. Embassy & Consulates in U.S. For more information on CSPA age calculation, see Volume 7, Part A, Chapter 7, Part F, Section 2 of the USCIS Policy Manual. This is referred to as the sought to acquire requirement. If you are an immediate relative, a VAWA self-petitioning abused spouse or child of a U.S. citizen, or a derivative child of a VAWA self-petitioning abused spouse or child of a U.S. citizen, your age is frozen on the date the Form I-130 or Form I-360 is filed. CSPA age is frozen on the date the principal asylee parents Form I-589 is filed. [33] 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. [^ 19] See Part L, Refugee Adjustment, Chapter 2, Eligibility Requirements, Section F, Special Considerations for Refugee Adjustment of Status Applicants, Subsection 2, Child Status Protection Act Provisions [7 USCIS-PM L.2(F)(2)].