When considering a claim of extraordinary circumstances, the officer should weigh the totality of the circumstances and the connection between the circumstances presented and the failure to meet the sought to acquire requirement within the 1-year period, as well as the reasonableness of the delay. 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. Note:Certain forms, including Form I-290B, have a filing fee. (CSPA) you can "opt out" of conversion to the F1 visa category and remain an F2B visa applicant . You (not your parent) should send a signed letter stating that you wish to opt out of the conversion from F2B to F1. (CSPA), visa applicants can "opt out" of conversion to the F1 visa category and remain an F2B visa applicant. See INA 209(a)(1). 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 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. 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. Ineffective assistance of counsel, when certain requirements are met. [^ 38] There are two ways in which a visa may become unavailable for accepting and processing an adjustment of status application. CSPA CALCULATOR Fill in the fields below for CSPA Calculator * Fields with *are required fields. If you want to opt out of the automatic conversion, you must submit a written request to the USCIS office that approved your Form I-130. He said we need to write a letter to tell them why we believe. Paying the immigrant visa fee to the DOS; For refugee and asylee adjustment of status (Green Card), see, For family and employment preference and Diversity Visa immigrants, see. CSPA age is frozen on the date the Form I-130 is filed (or the Form I-360 is filed for VAWA self-petitioners and derivatives). The historical versions linked below reflect the pertinent policy in effect on that date and dates reflect when updates occurred. The CSPA does not solve the problem of "age outs" for all children of LPRs and other derivative beneficiaries. You should not have your exam until your interview has been scheduled. Citizenship and Immigration Services (USCIS) is issuing 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 in certain situations. It appears that NVC generally does not issue fee bills to dependent children who have . . To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. [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. 3 USCIS-PM - Volume 3 - Humanitarian Protection and Parole, 4 USCIS-PM - Volume 4 - Refugees and Asylees. 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. So, both you and your brother do qualify for CSPA, you need to write a letter to NVC stating that you and your brother may qualify for CSPA status so please review the situation, Once NVC reviews the case, they will send invoice for you and your brother. 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. U.S. [16], While the child must have been unmarried in order to qualify for refugee derivative status, he or she does not need to remain unmarried in order to adjust status under INA 209.[18]. Calculate your CSPA age as follows: 21 years and 4 months - 6 months = 20 years and 10 months. Share sensitive information only on official, secure websites. Denials that were based on the failure to seek to acquire and issued prior to the decision in Matter of O. Vazquez[51] were proper based on the law in effect at the time of the decision. [^ 46] If a derivative child has a pending adjustment application and USCIS approves the principal applicants request to transfer the underlying basis of their adjustment application to a different immigrant category based on another approved petition, then the date that the transfer request is received by USCIS is the date used to determine whether the derivative child met the sought to acquire requirement. As per CSPA calculator, his CSPA age remains under 21 till November 2017. . [12] The widow(er)s child(ren), if any, must be under the age of 21 and unmarried at the time of the petitioners death to be classified as derivatives on the automatically converted Form I-360, regardless of whether the child(ren) had a separate pending or approved Form I-130 at the time of the petitioners death. If an eligible applicant filed an adjustment of status application but later a visa is not available for issuance based on the DOS Visa Bulletin Final Action Dates chart for the applicants priority date, country of chargeability, and visa category, USCIS holds the application until the visa becomes available for issuance and the application can be adjudicated. The letter format is on this forum. [20] Instead of freezing the age of the applicant on the filing date, as is the case with IRs, CSPA provides a formula by which the preference applicants CSPA age is calculated in a manner that takes into account the amount of time the qualifying petition was pending. 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]. If the adjustment applicant was under the age of 21 at the time the petition was filed or automatically converted, the applicant is eligible for CSPA and will not age out. Congress recognized that many children were aging out due to large USCIS processing backlogs, so it enacted the Child Status Protection Act (CSPA) to protect certain children from aging out. [^ 31] For DVs, the qualifying petition is the DV Program electronic entry form. Official websites use .gov Applicants can determine when to file for adjustment of status by referring first to the USCIS Adjustment of Status Filing Charts from the Visa Bulletin webpage and then to the DOS Visa Bulletin. [7] CSPA only covers those immigrants explicitly listed in the statute; it does not apply to any other immigrants or nonimmigrants. I would like an attorney to double check the CSPA age calculation and draft the letter with appropriate language. Even though visas are available to a principal applicant and derivative child based on their priority date and country of chargeability in both October and November, the derivative child does not apply for adjustment of status in October or November (while the principal does apply). Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual regarding the Child Status Protection Act (CSPA), to include how USCIS calculates age under certain contexts and what actions satisfy the sought to acquire requirement. U.S. In between we also sent an email to NVC to know the status of our CSPA application for which they replied on 22nd July 2016 like this Quote This case is currently under review for applicability of the Child Status Protection Act (CSPA). L. 106-386 (PDF) (October 28, 2000). Pending time includes administrative review, such as motions and appeals, but does not include consular returns. 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. The NVC did its CSPA analysis when the priority date became current using Chart A, which was on Oct. 1, 2016. [^ 35] USCIS typically designates one of the two charts within 1 week of the publication of the DOS Visa Bulletin. Such retrogression can affect either chart in the Visa Bulletin and may result in a visa becoming unavailable to the prospective applicant for accepting and processing their application. If your LPR parent filed a Form I-130 for you as an unmarried son or daughter (second preference classification) and then your parent became a U.S. citizen, you normally would automatically convert to a first preference classification as the unmarried son or daughter of a U.S. citizen (F1). You must submit the correct filing fee for each form unless you are exempt or eligible for a fee waiver. Applicants who will follow to join the principal applicant later will be interviewed separately. You are only eligible for CSPA if you are the beneficiary of a Form I-130, Petition for Alien Relative. To be CSPA qualified you must meet two criteria: Your "CSPA age" must be under 21 years old. I suggest you gather up the relevant documents (particularly the I-130 receipt and I-130 approval notice) and get a lawyer to send a letter to the NVC that demonstrates your CSPA calculation, asserts your eligibility to stay in F2A and urges them to forward your case to the consulate for final processing. Since your age freezes on the date your stepparent files the Form I-130, you may benefit from the CSPA as long as your stepparent files the Form I-130 before your 21st birthday. In order to qualify as a stepchild, the marriage between your U.S. citizen stepparent and your K3 nonimmigrant parent must have occurred before your 18th birthday. A .gov website belongs to an official government organization in the United States. U.S. 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)]. However, you must remain unmarried in order to qualify. See Matter of O. Vazquez (PDF), 25 I&N Dec. 817 (BIA 2012). The applicants CSPA age is calculated as follows: 21 years and 4 months - 6 months = 20 years and 10 months. Furthermore, the fact of being or having been a child is common to all applicants seeking protection under the CSPA and does not constitute extraordinary circumstances. [^ 22] See INA 203(h)(1)(A). Adjustment applicants who fail to fulfill the sought to acquire requirement within 1 year of visa availability may still be able to benefit from CSPA if they can establish that their failure to meet the requirement was the result of extraordinary circumstances.[50]. The applicant must have had a qualifying petition. The applicant would have been considered under the age of 21 under applicable CSPA rules; The applicant applied for adjustment of status within 1 year of visa availability; and. The CSPA was enacted to preserve child status for certain beneficiaries who would otherwise "age out" (turn 21 years old before they could be issued a visa) due to administrative delays in visa processing. Secure .gov websites use HTTPS 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. 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. You will need the ten (10) digit barcode number from your DS-260 confirmation page to book your appointments. If an applicant has multiple approved petitions, the applicants CSPA age is calculated using the petition that forms the underlying basis for the adjustment of status application. A visa subsequently becomes available again on October 1, 2021, based on the Dates for Filing chart, which USCIS has designated for use in that month. In order to qualify as a stepchild, the marriage between your U.S. citizen stepparent and your K1 nonimmigrant parent must have occurred before your 18th birthday. You may check the Visa Bulletinto see if opting out of automatic conversion may result in a shorter waiting time for you. A visa initially becomes available to the prospective applicant according to the Dates for Filing chart on October 1, 2020, which USCIS has designated for use in that month. The formula for determining the length of time the petition was pending is as follows: Approval Date - Filing Date = Pending Time. Citizenship and Immigration Services (USCIS) is revising its policy guidance in the USCIS Policy Manual to align with the Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements Final Rule, published in the Federal Register on August 3, 2020. Therefore, it is always in the applicants best interest to apply for adjustment of status as soon as possible when a visa first becomes available according to the chart designated by USCIS so as to lock in the applicants CSPA age. For DVs, the qualifying petition is the DV Program electronic entry form. VAWA self-petitioners and derivatives who do not qualify for CSPA may qualify for age-out relief under VTPVA. The second employer files a new Form I-140 for the parent, and the applicant is listed as a derivative on this second approved Form I-140. [^ 7] See Section H, Summary of Child Status Protection Act Applicability [7 USCIS-PM A.7(H)] for a condensed guide to basic provisions for each category of CSPA-eligible immigrants. The CSPA age associated with the petition does not change after the filing of the adjustment of status application and is frozen through the final adjudication, regardless of when a visa is authorized for issuance based on the Final Action Dates chart.[37]. When the visa becomes available again, the applicants CSPA age is calculated based on the new visa availability date. [^ 4] 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. If you were under the age of 21 at the time the petition was filed, you are eligible for CSPA and will not age out. Certain provisions of the CSPA apply to some categories of immigrants but not others. CSPA may still apply for a preference applicant who did not have an adjustment application pending on August 6, 2002, and who did not timely seek to acquire. APPLICATION OF THE CHILD STATUS PROTECTION ACT TO THE CHILDREN OF U.S. CITIZEN PETITIONERS 2 APPLICATION OF THE CSPA TO THE CHILDREN OF U.S. CITIZEN PETITIONERS | DECEMBER 2018 B. Child's Age Frozen on the Date of the Parent's Naturalization The CSPA also amended Section 201 of the INA to provide that if a permanent resident parent who had filed a visa It is important to note that while USCIS designates one of the charts for use by applicants each month for accepting and processing adjustment of status applications, the Final Action Dates chart always governs when a visa is authorized for issuance to an applicant. For more information on CSPA age calculation, see Volume 7, Part A, Chapter 7, Part F, Section 2 of the USCIS Policy Manual. However, you must remain unmarried in order to qualify. 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. The delay was reasonable under the circumstances. Hi, Our case was approved 2 days after the childs 21 birthday. 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. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicators Field Manual (AFM) content into the USCIS Policy Manual. This letter should also include your and your parents names and dates of birth and the receipt number for your Form I-130. First, the date in the DOS Visa Bulletin for the prospective applicants country of chargeability and preference category may retrogress or move backwards. L. 107-56 (PDF), 115 Stat. [^ 48] For DVs, the date a visa is considered available is the first day on which the principal applicants rank number is current for visa processing. However, CSPA does not change the requirement that you must be unmarried in order to remain eligible for classification as a child. For family and employment-based preference adjustment applicants, the length of time a petition was pending (pending time) is the number of days between the date that it is properly filed (filing date)[30] and the approval date. At that point, USCIS would calculate CSPA age based on the derivatives age on December 1, 2021 (not October 1, 2020). Based on the CSPA rule, she should be still qualified for F2A. [^ 44] See 9 FAM 502.1-1(D)(6)(a)(3), Sought to Acquire LPR Status Provision. [^ 1] See Pub. CSPA applies only to those applicants specified in the statute: Family-sponsored preference principals and derivatives; Violence Against Women Act (VAWA) self-petitioners and derivatives;[4], Employment-based preference derivatives;[5]. [^ 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. In October 2020, USCIS designates the Dates for Filing chart of the DOS Visa Bulletin for use to apply for adjustment of status in the employment-based preference categories. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual to remove references to Biographic Information (Form G-325A). See AFM 21.2(e) (PDF, 1.82 MB), The Child Status Protection Act of 2002. [10], Certain Preference Applicants with No Adjustment Application Pending on the Effective Date. In order to include his or her child(ren) on the self-petition as derivatives, the child(ren) must be under the age of 21 and unmarried when the Form I-360 is filed, regardless of whether the child(ren) had a separate or approved Form I-130 when the Form I-360 was filed.[14]. 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. If the applicants CSPA age is over 21 at the time of subsequent visa availability, the applicant is no longer eligible for CSPA coverage. 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. The parent files an adjustment of status application based on the second Form I-140 and is approved. 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. [^ 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. The applicants mother filed a petition on the applicants behalf on February 1, 2016. Under Section 424 of the USA PATRIOT Act, if a qualifying form was filed before September 11, 2001, then the applicant is afforded an additional 45 days of eligibility.[11]. See Chapter 9, Death of Petitioner or Principal Beneficiary [7 USCIS-PM A.9] for more information. The applicants CSPA age is calculated using the approved petition that forms the new basis of the adjustment of status application.[29]. See Matter of O. Vazquez (PDF), 25 I&N Dec. 817 (BIA 2012). So long as the child was under 21 on the date of the interview, he or she will not age out of eligibility for derivative refugee status or adjustment of status. In order to calculate an adjustment applicants CSPA age according to the formula above, the officer must first determine the age at time of visa availability. [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. In other words, the applicants age is frozen on the date the Form I-589 is filed. The CSPA went into effect on August 6, 2002. 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. 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. [21] Furthermore, the applicants eligibility depends not only on the CSPA age calculation but also on whether the applicant sought to acquire lawful permanent residence within 1 year of visa availability.[22]. Child of LPR (F2A) Becomes Child of a U.S. Citizen (Immediate Relative). [^ 42] Submitting a Form DS-260 that covers only the principal applicant does not meet the sought to acquire requirement for a derivative child. Limited CSPA Coverage for K-4Nonimmigrants. Official websites use .gov The DV Program registration period began on Oct. 1, 2012, and the DV selection Letter is dated May 1, 2013. For DVs, the date a visa is considered available is the first day on which the principal applicants rank number is current for visa processing. CSPA age is frozen on the date the principal asylee parents Form I-589 is filed. If the visa does not remain continuously available for accepting and processing the application, and becomes unavailable again, the period starts anew once the visa becomes available again. Secure .gov websites use HTTPS Fortunately, her PD is current that month too. You will be notified once a decision is reached. Child Status Protection Act (CSPA) 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. As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. Generally, in order to establish eligibility, a derivative asylee must have been listed on the principal applicants Form I-589 prior to a final decision on the principals asylum application. Therefore, the date the visa is considered available for family and employment-based preference applicants is the later of these two dates: The first day of the month of when USCIS considers a visa available for accepting and processing an adjustment of status application for that immigrant preference category and priority date.
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