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Opinion

Major change in CSPA age calculation

IMMIGRATION CORNER - Michael J. Gurfinkel - The Philippine Star

On Feb. 14, 2023, the US Citizenship and Immigration Services (USCIS) announced a major change in determining when a visa is “available” for purposes of calculating a child’s age under the Child Status Protection Act (CSPA).  Under this change in policy, more children could be eligible for CSPA age-out protection, as the computation of the child’s age could be performed years earlier than under current practice. This change in policy is effective immediately and applies to adjustment of status applications adjudicated by USCIS on or after Feb. 14, 2023.

Previously, both the Department of State (DOS) and USCIS used the “Final Action Dates” on the monthly Visa Bulletin as the date for determining when a visa becomes available, for purposes of calculating a child’s age. In October 2015, DOS began publishing two charts in the monthly Visa Bulletin, consisting of a “Dates for Filing” chart (which notifies beneficiaries when they may assemble and submit required documents to the National Visa Center or NVC) and a “Final Action Dates” chart (which informs when a visa is authorized for issuance).

Since this change in 2015, USCIS has designated one of these two charts (Dates for Filing or Final Actions Dates) for applicants to use in determining when they may file an adjustment of status application. In almost all cases, the Dates for Filing chart was earlier (or sooner) than the Final Action Dates, allowing people to file for adjustment of status and obtain work authorization while waiting for the priority date on the Final Action Dates chart to become current. However, USCIS still considered a visa “available” for CSPA age calculation based on the Final Action Dates chart.

However, in changing its policy, USCIS pointed out that a potential CSPA-eligible child could file an adjustment application and pay the filing fees (based on the Dates for Filing chart) without knowing if they would eventually be qualified based on the Final Action Dates. To address this issue, USCIS has updated or changed its policy and now considers a visa “available” to calculate the CSPA age at the same time it considers a visa “available” for accepting and processing adjustment of status applications. This will be based on whether USCIS relies on the Dates for Filing or the Final Action Dates chart.

Using the Dates for Filing chart could greatly benefit CSPA-eligible children, as the age calculation could be performed years earlier. For example, for the March 2023 Visa Bulletin, the Dates for Filing for single adult children (F1) for the Philippines is April 22, 2015.  However, the Final Action Date is March 1, 2012. On its website, USCIS states that applicants should use the Dates for Filing chart in connection with filing for adjustment of status. Therefore, if the priority date is earlier than April 22, 2015, the principal beneficiary and derivatives may file for adjustment of status (if otherwise eligible). Under the new policy, a child’s age would now be calculated using the April 22, 2015 date for visa availability, whereas previously the child had to wait for the March 1, 2012 priority date to become current in order to calculate their age.

Determining a child’s CSPA eligibility is extremely complex and confusing. It involves taking into account the monthly Visa Bulletin, then referring to the USCIS’s website to determine which of the two charts they are relying on for that month, performing the mathematical computation and, if eligible under the CSPA, they must seek to acquire their visa and/or file adjustment of status within one year.

Also, they must be eligible to file for adjustment of status, such as being in status, having the benefit of Section 245(i), etc. Also, while the USCIS is adopting this new policy, the DOS is still using Final Action Dates for calculating a child’s CSPA age as of now.

That’s why if your child’s adjustment was previously denied but they can now benefit under this new policy, or if you have any questions concerning a child who is potentially eligible under the CSPA, you should consult with an attorney who can evaluate your case and determine which of the two charts to utilize and do the CSPA calculations, or can bring a motion to reopen a previously denied case.

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WEBSITE: www.gurfinkel.com

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