[^ 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. [^ 24] See Section B, Child Status Protection Act Applicability [7 USCIS-PM A.7(B)] for more information on effective date. If the petitioner naturalizes (becomes a U.S. citizen) before the child or unmarried son or daughter gets a Green Card, the petition is converted to either an immediate relative or family first preference case. However, you may choose to opt out of the automatic conversion and stay in second preference classification (F2B) if the waiting time for the second preference visa is shorter than the waiting time for the first preference visa. [^ 45] Applicants may file the Form I-824 concurrently with the adjustment application. Once a Processing Complete Letter has been issued, NVC "closes" the file and places it in a queue for future use. Instead, CSPA provides a method for calculating a persons age to see if they meet the definition of a child for immigration purposes. However, CSPA does not change the requirement that you must be unmarried in order to remain eligible for classification as a child. The History tab was added to the USCIS Policy Manual on June 11, 2021, and provides historical versions on and after that date. However, we called NVC and was told that she was moved to F2B. The priority date should not be used for purposes of determining CSPA eligibility. Officers consider new evidence of extraordinary circumstances submitted with the motion to reopen, consistent with the guidance in this section. Based on the CSPA rule, she should be still qualified for F2A. See INA 204(a)(1)(D)(i)(I) and INA 204(a)(1)(D)(i)(III). On June 1, 2021, the visa becomes available again to the prospective applicant. If we previously denied your adjustment of status application, but you believe your CSPA age calculation is under 21 under this policy guidance, you may file a motion to reopen your application using a Notice of Appeal or Motion (Form I-290B). How can I request NVC to consider my son's CSPA age and grant him immigrant visa as well? The formula for determining the length of time the petition was pending is as follows: Approval Date - Filing Date = Pending Time. VAWA self-petitioners and derivatives who do not qualify for CSPA may qualify for age-out relief under VTPVA. You are only eligible for CSPA if you are the beneficiary of a Form I-130, Petition for Alien Relative. You (not your parent) should send a signed letter stating that you wish to opt out of the conversion from F2B to F1. For historical versions before June 11, 2021, navigate to the USCIS Policy Manual within the USCIS website at:https://archive.org, Select a date to view the historical version, An official website of the U.S. Department of Homeland Security, An official website of the United States government, Part R - Abandonment of Lawful Permanent Residence, POLICY ALERT - Age Calculation under Child Status Protection Act, POLICY ALERT - EB-5 Reform and Integrity Act of 2022, Technical Update - Adding References to the EB-5 Visa Program in Child Status Protection Act Guidance, Technical Update - Replacing the Term Alien, POLICY ALERT - Age and Sought to Acquire Requirement under Child Status Protection Act, POLICY ALERT - Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements Final Rule, Technical Update - Moving the Adjudicators Field Manual Content into the USCIS Policy Manual, Technical Update - Replacing the Term Foreign National, Technical Update - Child Status Protection Act, POLICY ALERT - Child Status Protection Act, POLICY ALERT - Adjustment of Status Policies and Procedures and 245(a) Adjustment, To protect your privacy, please do not include any personal information in your feedback. Diversity immigrant visa (DV) derivatives; CSPA provisions vary based on the immigrant category of the applicant. For derivatives of widow(er)s, a childs age is frozen on the date the Form I-360 is filed or the spousal Form I-130 is automatically converted to a widow(er)s Form I-360 (in other words, the date of the petitioners death). This technical update to Volume 7 includes references to the EB-5 visa program and Form I-526, Immigrant Petition by Alien Investor, and clarifications regarding the Child Status Protection Act eligibility of derivative applicants of the VAWA-based Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. NVC is asking us to pay IV Application Processing Fees on ceac.state.gov but it only displays names of my husband and I on ceac.state.gov. [^ 39] See INA 203(h)(1)(A). Noncitizens must generally file motions to reopen within 30 days of the decision. See Subsection 4, Determining Age at Time of Visa Availability [7 USCIS-PM A.7(F)(4)]. [^ 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. However, in December 2020, USCIS designates the Final Action Dates chart for use by prospective applicants in the employment-based preference categories. [39] This requirement does not apply to refugee derivatives, asylee derivatives, and IRs.[40]. Under these facts, the prospective applicant failed to seek to acquire permanent residence within 1 year of visa availability because the prospective applicant failed to apply for adjustment of status during the 1-year period between March 1, 2020, and March 1, 2021, when a visa was continuously available to file an adjustment of status application. The core purpose of the Child Status Protection Act (CSPA)[1] was to alleviate the hardships faced by certain noncitizens who were previously classified as children for immigrant visa purposes, but who, due to the time required to adjudicate petitions, had turned 21 years old and consequently became ineligible to receive such immigrant visas. 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. In order for a family-sponsored or employment-based preference or DV applicant to qualify for CSPA, the applicant must meet the following requirements: For family-sponsored (including VAWA)[26] and employment-based preference and DV categories, an adjustment applicants CSPA age is calculated by subtracting the number of days the petition on which the applicant seeks to adjust status was pending (pending time) from the applicants age on the date the immigrant visa becomes available to the applicant (age at time of visa availability). 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]. The petition had been pending for three months before it was approved, so that period of time can be subtracted from the child's age. If a visa initially becomes available and then becomes unavailable[38] for accepting and processing an adjustment of status application before the potential adjustment applicant has filed an application, the applicants CSPA age is not locked in. This guidance becomes effective October 2, 2020. As a K-2 nonimmigrant (child of a K-1 nonimmigrant who is the fianc(e) of a U.S. citizen), you typically get a Green Card based on your admission into the U.S. with a K-2 visa and your K-1 parents marriage to the U.S. citizen petitioner within 90 days of being admitted to the U.S. As long as you were under 21 when you were admitted to the United States as a K-2 nonimmigrant, you will not age out of eligibility for a Green Card. Only the applicants who are listed on the interview appointment letter issued by the NVC must appear to be interviewed at the scheduled time. See9 FAM 502.6-4, Diversity Visa Processing. . [^ 35] USCIS typically designates one of the two charts within 1 week of the publication of the DOS Visa Bulletin. 7 USCIS-PM B - Part B - 245(a) Adjustment, 7 USCIS-PM L - Part L - Refugee Adjustment. At that point, USCIS would calculate CSPA age based on the derivatives age on December 1, 2021 (not October 1, 2020). U.S. . 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]. [^ 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.. 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. Pending time includes administrative review, such as motions and appeals, but does not include consular returns. [13], Similarly, the beneficiary of a pending or approved spousal Form I-130 may subsequently file a VAWA-based Form I-360. The delay was reasonable under the circumstances. U.S. If you do not meet the sought to acquire requirement, we may use our discretion to excuse you from this requirement, if you can establish that your failure to meet this requirement was the result of extraordinary circumstances. Looking for U.S. government information and services? The applicant must be unmarried at the time he or she seeks adjustment of status. More Immigration US visas Immigrant visas Family-Sponsored Preference Principals and Derivatives (including VAWA)[54]. [^ 30] While the priority date is often the same as the filing date (also referred to as the receipt date), there are instances in which the priority date is not the same, such as in employment-based cases based on the filing of a labor certification. See AFM 21.2(e) (PDF, 1.82 MB), The Child Status Protection Act of 2002. 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]. U.S. INA 201(f) - Rules for determining whether certain aliens are immediate relatives, INA 203(h) - Rules for determining whether certain aliens are children, INA 207(c)(2)(B) - Admission by Attorney General of refugees; criteria; admission status of spouse or child; applicability of other statutory requirements; termination of refugee status of alien, spouse, or child, INA 208(b)(3)(B) - Continued classification of certain aliens as children, INA 209(a)(1) - Inspection and examination by Department of Homeland Security, INA 209, 8 CFR 209 - Adjustment of status of refugees and asylees, Pub. An adjustment applicant may satisfy the sought to acquire requirement by any one of the following: Properly filing an Application to Register Permanent Residence or Adjust Status (Form I-485);[41], Submitting a completed Immigrant Visa Electronic Application (Form DS-260), Part I to the DOS;[42], Paying the immigrant visa fee to DOS;[43], Paying the Affidavit of Support Under Section 213A of the INA (Form I-864) review fee to DOS (provided the applicant is listed on the Affidavit of Support);[44] or, Having a properly filed Application for Action on an Approved Application or Petition (Form I-824) filed on the applicants behalf. DV applicants also use the DOS Visa Bulletin to determine visa availability. VAWA self-petitioners and derivatives who age out before adjusting status are considered self-petitioners for preference status, and derivatives retain the priority date of their parents Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) VAWA self-petition. [27] The formula for calculating CSPA age is as follows: Age at time of visa availability - Pending time = CSPA Age, While an applicant must file an adjustment application or otherwise seek lawful permanent resident status in order to benefit from CSPA, the date the applicant files an adjustment application is not relevant for the CSPA age calculation.[28]. For more information on K-4 visas, see the K-3/K-4 Nonimmigrant Visas page. Sample of CSPA aged appeal letter to NVC (The Child Status Protection Act) Emily Huynh 413 subscribers Subscribe 45 Share 2.5K views 2 years ago This video shows you how to write a letter. When a lawful permanent resident (LPR) files a Form I-130, Petition for Alien Relative for his or her child or unmarried son or daughter, the petition is classified as a family second preference case. You can find the receipt number on the receipt and approval notices. A previously filed Form I-824 that was denied because the principal applicant's adjustment application had not yet been approved may serve as evidence of having sought to acquire. See 9 FAM 502.1-1(D)(6), Sought to Acquire LPR Status Provision, for more information regarding how overseas applicants may satisfy the sought to acquire requirement in the consular processing context. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to incorporate changes resulting from the EB-5 Reform and Integrity Act of 2022. An applicant is listed as a derivative on an approved Form I-140 filed by their parents employer. 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. However, USCIS considers untimely motions to reopen for denials issued after the Matter of O. Vazquez precedent (June 8, 2012), but only if the denial was based solely on the adjustment applicants failure to seek to acquire within 1 year. [^ 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. 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. 1 USCIS-PM - Volume 1 - General Policies and Procedures, 7 USCIS-PM - Volume 7 - Adjustment of Status, 9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief, 10 USCIS-PM - Volume 10 - Employment Authorization, 11 USCIS-PM - Volume 11 - Travel and Identity Documents, 12 USCIS-PM - Volume 12 - Citizenship and Naturalization. [^ 41] See Chapter 3, Filing Instructions, Section B, Definition of Properly Filed [7 USCIS-PM A.3(B)]. 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. 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. The adjustment applicant must have had one of the following pending on or after the CSPAs effective date: a qualifying Refugee/Asylee Relative Petition (, The applicant must have been under the age of 21 and unmarried at the time the principal asylum applicants. I would like an attorney to double check the CSPA age calculation and draft the letter with appropriate language. 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. [^ 28] See Section G, Sought to Acquire Requirement [7 USCIS-PM A.7(G)] for detailed information. U.S. Hi, Our case was approved 2 days after the childs 21 birthday. [^ 20] See Section C, Immediate Relatives [7 USCIS-PM A.7(C)], Section D, Derivative Asylees [7 USCIS-PM A.7(D)], and Section E, Derivative Refugees [7 USCIS-PM A.7(E)]. 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. Secure .gov websites use HTTPS For IRs and IR self-petitioners or derivatives under VAWA, a childs age is frozen on the date the Form I-130 or Form I-360 is filed, respectively. It is important to note that this NVC-generated assessment letter will not hold up the qualification of the case for appointment at post. [^ 54] For more detailed guidance on CSPA applicability and VAWA, see INA 204(a)(1)(D)(i) and 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. CSPA allows children who turn 21 years old after an asylum application is filed but prior to adjudication to continue to be classified as children and remain eligible for derivative asylum status and adjustment of status. While K nonimmigrants are not covered under CSPA, K-2 and K-4 nonimmigrants may benefit from CSPA under certain limited circumstances. 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.
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