USCIS Revises Child Age-Out Calculation Policy to Benefit Some Adjustment of Status Applicants

USCIS has revised its Child Status Protection Act (CSPA) policy so that fewer child adjustment of status applicants risk “aging out” of the ability to obtain a green card due to reaching age 21 and no longer qualifying as a “child” under relevant law. Under the new policy, USCIS will use the State Department Visa Bulletin “Dates for Filing” chart – instead of the less generous “Final Action Date” chart – for CSPA age calculations in cases where USCIS has permitted applicants to file their adjustment of status applications under the Dates for Filing chart. USCIS is applying the revised policy to adjustment of status applications adjudicated on or after February 14, 2023. Individuals who aged out under the prior policy may be able to reopen their adjustment of status denial in certain circumstances.

The issue

U.S. Citizenship and Immigration Services (USCIS) has broadened its policy on Child Status Protection Act (CSPA) age calculation for children of family-based and employment-based adjustment of status applicants. The change took effect February 14, 2023, and applies to adjustment of status applications pending on or after that date. The new policy is intended to result in fewer child adjustment of status applicants “aging out” of the ability to obtain a green card through their parent’s adjustment of status process once the child reaches age 21 and no longer qualifies as a “child” under the law.

Background

For a child to obtain lawful permanent residence as a derivative of their parent under family-based and employment-based immigration rules, the child must remain under the age of 21. Once the child reaches age 21, they “age out” and are generally no longer eligible to obtain permanent residence through their parent.

The Child Status Protection Act was enacted in 2001 to mitigate the “aging out” of applicants for immigrant visas and green cards due to lengthy government processing times. For adjustment applicants in the numerically limited family- and employment-based preference categories, the law prescribes a complex formula for “freezing” an applicant’s age based on the length of time the applicant’s underlying immigrant visa petition was pending, and the date on which an immigrant visa became available to the applicant according to the State Department’s monthly Visa Bulletin.

Determining whether CSPA protection is available became more complex for some applicants in 2015, when the State Department stopped issuing a Visa Bulletin containing a single chart detailing immigrant visa availability for each country and preference category and instead began to issue a Bulletin that set forth two charts, listing relevant availability dates for each immigrant category and country — a Final Action Dates chart, which establishes when an immigrant visa is authorized for issuance, and the Dates for Filing chart, which notifies applicants when they may submit required documents to the relevant agency in connection with their green card application. For purposes of adjustment applications, each month USCIS announces whether it will accept adjustment applications based on either the Dates for Filing or the Final Action Date chart for the relevant month. Often, the Date for Filing chart permits a foreign national to submit an adjustment application sooner than if the Final Action Date chart were selected by USCIS.  However, until now, USCIS considered a visa available for CSPA age calculation based only on the Final Action Dates chart. This meant that foreign nationals whose adjustment applications were submitted under the Dates for Filing chart were unable to assess whether they could benefit from age-out protections under CSPA. The new USCIS guidance rescinds that earlier policy.

What the policy change means for current and future adjustment applicants

Since February 14, USCIS has been automatically applying the new CSPA calculation policy to pending and newly filed adjustment of status applications. The policy change will not prevent all children from aging out in the permanent residence process, but it should decrease the number of age-outs where applicants have properly filed adjustment of status applications under the Dates for Filing chart. 

The policy change also does not prevent nonimmigrant children from aging out of nonimmigrant status once they reach the actual age of 21. According to USCIS, the agency is separately exploring options that might be available to assist this population.

How the new policy affects denied adjustment applicants

In its announcement of the new CSPA age calculation policy, USCIS states certain individuals whose adjustment of status applications were denied due to the agency’s prior policy may be able to file a motion to reopen their cases. In practice, foreign nationals should consider filing a motion to reopen if:

• their adjustment of status application was filed based on the Dates for Filing chart rather than the Final Action Date chart;
• the application was denied on the basis of the applicant aging out under a Final Action Date chart CSPA calculation; and
• the new USCIS policy using Dates for Filing would have placed the applicant’s CSPA age under 21.

USCIS is expected to accept motions under the new policy from applicants for whom the standard appeal deadline – typically 30 days after the adverse USCIS decision, with some time-limited COVID-related exceptions – has passed.