USCIS Updates Policy Guidance on CSPA ‘Sought to Acquire’ Requirement
On August 24, 2023, U.S. Citizenship and Immigration Services (USCIS) announced a new update to its policy manual clarifying a previous policy change aimed at expanding green card eligibility under the Child Status Protection Act (CSPA) for children who lost eligibility, or “aged out”, due to the years-long visa backlogs.
The 2002 law protects noncitizens who were previously considered children (meaning they were unmarried and under 21 years old) when their parent’s family- or employment-based preference category visa petitions were filed, but, due to the time it took the government to adjudicate the petition, had turned 21 years old and became ineligible to receive an immigrant visa.
The CSPA works by “freezing” the age of a child based on a formula. The “CSPA age” is calculated by determining the noncitizen child’s biological age at the time their visa becomes available and subtracting any time the petition took to process. Neither the statute nor regulations define when a visa becomes available for the CSPA age calculation. Beneficiaries must have also “sought to acquire” lawful permanent resident status within one year of the immigrant visa becoming available.
Before 2015, the visa availability date for both the CSPA age calculation and the “sought to acquire” requirement was based on a single chart published by the Department of State (DOS). That year, the DOS began to publish two charts—the “Dates for Filing” chart (notifying beneficiaries when they could begin to submit the required documents for their immigrant visa applications) and the “Final Action Dates” chart (indicating when a visa could be issued). This change allowed applicants to start the processing of their applications without having to wait until the visa could be issued.
Similarly, USCIS uses these charts to determine when it will accept and begin to process adjustment of status applications for preference category beneficiaries in the U.S. Every month, USCIS determines if there are more immigrant visas available for the fiscal year than there are known applicants. If so, beneficiaries may use the Dates for Filing chart, otherwise they must use the Final Action Dates chart.
In 2018, USCIS determined that it would use the Final Action Dates chart for the CSPA age calculation while allowing beneficiaries to file their adjustment of status applications using the Dates for Filing chart. This meant that though a noncitizen paid the fee and filed their application based on the Dates for Filing chart, ultimately, they could age out and not be eligible for adjustment because their CSPA age calculation was based on the later occurring Final Action Dates chart.
USCIS updated this policy on February 14, 2023. The agency would now consider an immigrant visa becoming available for the CSPA age calculation at the same time it considered a visa immediately available for accepting and processing the adjustment of status application. In addition, the update referenced that previously denied applications could be reopened by filing a motion to reopen and the 30-day filing deadline for such motion could be waived if the delay was reasonable and beyond the control of the noncitizen.
On August 24, 2023, USCIS updated its policy manual to address these concerns. Specifically, USCIS considered the February 14, 2023 policy change an “extraordinary circumstance” that could form the basis for the excusal of the one-year sought to acquire requirement.
USCIS explained that the CSPA protects certain beneficiaries from losing their eligibility for immigrant visas and adjustment of status because they age during the immigration process and no longer qualify as a child for immigration purposes. To benefit from the CSPA, noncitizens must seek to acquire lawful permanent resident status within 1 year of when an immigrant visa becomes available, USCIS noted. The update:
Explains that USCIS considers the February 14 policy change to be an extraordinary circumstance that may excuse an applicant’s failure to meet the “sought to acquire” requirement;
Clarifies that the agency may excuse an applicant’s failure to meet the requirement if they did not apply to adjust status because they could not calculate their CSPA age under the prior policy or their CSPA age would have been calculated as over 21, but they are now eligible for CSPA age-out protection under the new policy; and
Clarifies that the agency considers applicants to have met the requirement if their application to adjust their status was pending on February 14 and they applied to adjust status within one year of a visa becoming available based on the Final Action Dates chart under the policy guidance that was in effect when they applied.
USCIS explained that under the policy guidance in effect before February 14, 2023, some noncitizens may not have applied to adjust status because a visa was not available to calculate their CSPA age under the prior policy or their CSPA age would have been calculated to be over 21 years old. If these noncitizens apply to adjust their status under the new policy issued on February 14, USCIS said, they may not be able to meet the one-year “sought to acquire” requirement. “However, noncitizens who do not meet this requirement may still benefit from the CSPA if they can establish that their failure to meet the requirement was the result of extraordinary circumstances,” USCIS noted.