cspa letter to nvc cspa letter to nvc

[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. The Child Status Protection Act, or CSPA, was enacted in 2002 in an effort to prevent certain children from aging out while they wait to immigrate on a family-based petition. 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. 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. 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). Motions to Reopen Following Matter of O. Vazquez. 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. A written request to transfer the underlying basis of the adjustment of status application also will meet the sought to acquire requirement, if we receive the request within 1 year of an immigrant visa becoming available in the new preference category. This chapter primarily focuses on the impact of CSPA on adjustment applicants, though the same principles generally apply to noncitizens seeking an immigrant visa through DOS.[8]. [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]. You (not your parent) should send a signed letter stating that you wish to opt out of the conversion from F2B to F1. [^ 6] The CSPA protects a derivative refugee from aging out prior to his or her refugee admission, but such protection is not needed at the adjustment stage because a derivative refugee does not need to remain the spouse or child of the principal refugee in order to adjust status under INA 209. Looking for U.S. government information and services? [^ 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.. The DV Program registration period began on Oct. 1, 2012, and the DV selection Letter is dated May 1, 2013. 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. In these circumstances, you are not eligible for and do not need CSPA in order to get a Green Card. [^ 41] See Chapter 3, Filing Instructions, Section B, Definition of Properly Filed [7 USCIS-PM A.3(B)]. If we approve a request to transfer the underlying basis of the pending adjustment of status application, calculate the CSPA age using the approved petition that forms the new basis of the adjustment application. 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. This page was not helpful because the content: Chapter 9 - Death of Petitioner or Principal Beneficiary, Chapter 10 - Legal Analysis and Use of Discretion, Part I - Adjustment Based on Violence Against Women Act, Part J - Trafficking Victim-Based Adjustment, Part Q - Rescission of Lawful Permanent Residence, Adjustment of Status Filing Charts from the Visa Bulletin, Age-Out Protections Afforded Battered Children Pursuant to The Child Status Protection Act and the Victims of Trafficking and Violence Protection Act, How to Use the USCIS Policy Manual Website, Appendix: 2020 Fee Rule Litigation Summary. Adjustment applicants are eligible for CSPA consideration if either the qualifying application (Application to Register Permanent Residence or Adjust Status (Form I-485)) or one of the following underlying forms was filed or pending on or after the effective date: Petition for Alien Relative (Form I-130); Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360); Immigrant Petition for Alien Worker (Form I-140); Immigrant Petition by Standalone Investor (Form I-526); Immigrant Petition by Regional Center Investor (Form I-526E); Application for Asylum and for Withholding of Removal (Form I-589); Registration for Classification as a Refugee (Form I-590); or, Refugee/Asylee Relative Petition (Form I-730). Noncitizens must generally file motions to reopen within 30 days of the decision. In this case, the age of the child will be frozen as of the date that the I-130 is received by the government. 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. 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 petition had been pending for three months before it was approved, so that period of time can be subtracted from the child's age. Looking for U.S. government information and services? However, CSPA does not change the requirement that you must be unmarried in order to remain eligible for classification as a child. * Got USCIS receipt notice on April 08, 2011. 7 USCIS-PM A.7 - Chapter 7 - Child Status Protection Act. For more information, see Volume 7, Part A, Chapter 7, Part F, Section 2, of the USCIS Policy Manual. USCIS approved the petition on August 1, 2016. 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. Secure .gov websites use HTTPS 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. If a VAWA self-petitioner was the beneficiary of a previously filed Petition for Alien Relative (Form I-130), the VAWA self-petitioner and the VAWA self-petitioners derivatives CSPA age is calculated using the date the Form I-360 was filed because this is the petition through which they are seeking adjustment of status. [^ 8] For information about the impact of CSPA on applicants for an immigrant visa, see 9 FAM 502.1-1(D), Child Status Protection Act. This technical update replaces all instances of the term foreign national with alien throughout the Policy Manual 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]. The CSPA does not solve the problem of "age outs" for all children of LPRs and other derivative beneficiaries. The applicants calculated CSPA age must be under 21 years old; The applicant must have sought to acquire lawful permanent residence within 1 year of visa availability, absent extraordinary circumstances. Immediate relatives(including derivatives of widow(er)s); Family-sponsored preference principal applicants and derivative applicants; Violence Against Women Act (VAWA) self-petitioners and derivative applicants; Employment-based preference derivative applicants; Diversity Immigrant Visa (DV) derivative applicants; Form I-590, Registration for Classification as a Refugee; or, The first day of the month of when USCIS considers a visa available for filing an adjustment of status application based on your immigrant preference category, country of chargeability, and priority date. The applicant must be unmarried at the time he or she seeks adjustment of status. 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. Citizenship and Immigration Services (USCIS) is issuing policyguidance addressing the general policies and procedures of adjustment of status as well as adjustment under section 245(a) of the Immigration and Nationality Act (INA). Family-Sponsored Preference Principals and Derivatives (including VAWA)[54]. 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. If a continuous 1-year period of visa availability elapsed and the applicant did not seek to acquire during the 1-year period, the applicant cannot benefit from the age-out protections of the CSPA. The applicants CSPA age is calculated as follows: 21 years and 4 months - 6 months = 20 years and 10 months. 3 USCIS-PM - Volume 3 - Humanitarian Protection and Parole, 4 USCIS-PM - Volume 4 - Refugees and Asylees. [31] In other words, the pending time is the period of time between the start of the DV Program registration period to the date of the DV Selection Letter. The historical versions are provided for research and reference purposes only. The applicant is 21 years and 4 months old when USCIS considers an immigrant visa available. 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. This situation is commonly referred to as aging out and often means that these applicants would have to file a new petition or application, wait even longer to get a Green Card, or may no longer be eligible for a Green Card. 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. 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. Unlike derivative refugees, you must be unmarried in order to qualify for a grant of derivative asylum and to qualify for a Green Card under INA section 209. If your LPR parent filed a Form I-130 for you as his or her child and then your parent became a U.S. citizen before you turned 21, your age freezes on the date your parent became a citizen. CSPA does not change the definition of a child. 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). The delay was reasonable under the circumstances. You can find the receipt number on the receipt and approval notices. Review our. The CSPA went into effect on August 6, 2002. To be CSPA qualified you must meet two criteria: Your "CSPA age" must be under 21 years old. Share sensitive information only on official, secure websites. [^ 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. Please see theFiling Feespage for more information. Collect all the supporting documents and fill out DS-260 (include your child's name on DS-260). If you are a K-4 nonimmigrant, you are eligible for CSPA because you will apply for a Green Card as an immediate relative based on a Form I-130 filed by your U.S. citizen stepparent. [3] CSPA does not alter this definition. 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. [^ 33] For more information, see Chapter 3, Filing Instructions, Section B, Definition of Properly Filed, Subsection 4, Visa Availability Requirement [7 USCIS-PM A.3(B)(4)] and Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)]. L. 107-56 (PDF), 115 Stat. 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]. To benefit from the CSPA age determination, applicant must seek to acquire lawful permanent residence within 1 year of the visa becoming available. 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. At that point, USCIS would calculate CSPA age based on the derivatives age on December 1, 2021 (not October 1, 2020). For DV applicants, the number of days the petition was pending is the period of time between the first day of the DV application period for the program year in which the principal applicant qualified and the date on which notifications that entrants have been selected become available. 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. Commonplace circumstances, such as financial difficulty, minor medical conditions, and circumstances within the applicants control (such as when to seek counsel or begin preparing the application package), are not considered extraordinary. 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. . 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. It helps lock in the age and preserve the "child" status of both immediate relatives and those in the preference categories. To find remaining AFM content, see the crosswalk (PDF, 350.49 KB)between the AFM and the Policy Manual. [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. CSPA. If the applicant does not seek to acquire within 1 year of visa availability although the visa was available for a continuous 1-year period, the applicant cannot benefit from the age-out protections of the CSPA. Once a Processing Complete Letter has been issued, NVC "closes" the file and places it in a queue for future use. [13], Similarly, the beneficiary of a pending or approved spousal Form I-130 may subsequently file a VAWA-based Form I-360. 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 See9 FAM 502.6-4, Diversity Visa Processing. If you were under the age of 21 at the time your parent filed Form I-589, your age is frozen as of that date and you will not age out. See Subsection 4, Determining Age at Time of Visa Availability [7 USCIS-PM A.7(F)(4)]. For derivative refugees, an adjustment applicants CSPA age is his or her age on the date the principal applicants Form I-590 is filed. However, if your stepparent and your K-1 nonimmigrant parent did not marry within 90 days (a requirement for getting a Green Card based on K-1 and K-2 nonimmigrant status), your stepparent might choose to file a Form I-130 for you. When a visa becomes unavailable to the noncitizen before a continuous 1-year period has elapsed, the applicant has another 1-year period to seek to acquire when the visa once again becomes available for accepting and processing an adjustment of status application. For more information about applying for a Green Card as a K-1 or K-2 nonimmigrant, see the Green Card for Fianc(e) of U.S. Citizen page. [45], USCIS also considers a written request to transfer the underlying basis of the adjustment of status application to satisfy the sought to acquire requirement if the request is received within 1 year of an immigrant visa becoming available in the new preference category. 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]. 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. . Fortunately, her PD is current that month too. See INA 204(a)(1)(D)(i)(I) and INA 204(a)(1)(D)(i)(III). One year later, in December 2021, a visa once again becomes available to the derivative child based on the Dates for Filing chart, which USCIS has designated for use in that month, and the derivative child files an application for adjustment of status. [^ 17] The date a Form I-590 is considered filed is the date of the principal refugee parents interview with a USCIS officer. The NVC did its CSPA analysis when the priority date became current using Chart A, which was on Oct. 1, 2016. [^ 29] A transfer request potentially affects the CSPA age calculation for the derivative beneficiaries. The History tab was added to the USCIS Policy Manual on June 11, 2021, and provides historical versions on and after that date. The priority date should not be used for purposes of determining CSPA eligibility. The month . As it takes a long time to get Greencard in many categories, many dependent children may age-out while waiting and are no longer be eligible as dependents to get a green card.