CSPA: When not to expedite

Dear Attorney Gurfinkel:

My employer recently agreed to petition me for a green card. They’ve already started the recruitment/advertising stage and will then file the application (ETA 9089) with the Department of Labor (DOL). After that, my employer plans to expedite or premium-process my I-140 petition.

I’m concerned because my eldest child is 19 and I’m worried about her aging out. Would my child be eligible under the Child Status Protection Act (CSPA), and would it be a good idea to expedite the case for the benefit of my child?

Very truly yours,

MR

Dear MR:

You should definitely consult with an attorney on a one-on-one basis concerning the strategy you should follow on your case, especially concerning your child, as sometimes it is better to NOT expedite the case to be eligible under the CSPA.

First, be aware that once you file your PERM application with the Department of Labor (DOL), the DOL may take up to a year to process the PERM application. DOL’s policy is that they will not expedite any case under any circumstance, for any reason.

Assuming your PERM application is certified, then the employer files the Form I-140 petition for an alien worker. This is where it can get tricky or complicated. You state the employer wants to expedite the petition through premium processing (where the US Citizenship and Immigration Services [USCIS] will process a petition within 15 days). However, that may not be helpful for your child’s CSPA eligibility. In fact, in many cases, it might be more helpful to not expedite.

The reason is that under the CSPA, a child is given an allowance or “grace period” based on the length of the time a petition is pending (meaning from the date the petition is filed until the date it is approved). The longer USCIS takes to process and approve a petition, the more time can be subtracted from a child’s age. The faster the petition is approved, the less time can be subtracted from a child’s age. If a case is premium processed, then at most only 15 days could be subtracted from the child’s age.

The problem is that as of December 2023, the priority date on the final action dates chart of the visa bulletin is Dec. 1, 2021. That is at least two or more years away. Therefore, it may not be helpful for the case to be quickly approved.

On the other hand, the priority date in the application filing dates chart is Jan. 1, 2023. Under a new policy inaugurated on Feb. 14, 2023, USCIS may allow the computation of the child’s age based on the priority date listed in the application filing dates chart if the family is adjusting status in the US versus consular processing. The decision on whether to expedite might depend on which chart USCIS is relying on for a particular month in relation to the amount of time you need the petition to be pending.

As you can see, the CSPA can be very complex and confusing, and the decision on how to process a case depends on many factors. That’s why you should consult with an attorney on the best way to go.

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