By Adriel Orozco | Sep 5, 2023
On August 24, 2023, U.S. Citizenship and Immigration Services (USCIS) announced a new update to its policy manual clarifying a previous policy change aimed at expanding green card eligibility under the Child Status Protection Act (CSPA) for children who lost eligibility, or “aged out,” due to the years-long visa backlogs.
Before getting into the new update, it’s important to understand the role of the CSPA and a new interpretation announced earlier this year by USCIS. The 2002 law protects noncitizens who were previously considered children (meaning they were unmarried and under 21 years old) when their parent’s family- or employment-based preference category visa petitions were filed, but, due to the time it took the government to adjudicate the petition, had turned 21 years old and became ineligible to receive an immigrant visa.
The CSPA works by “freezing” the age of a child based on a formula. The “CSPA age” is calculated by determining the noncitizen child’s biological age at the time their visa becomes available and subtracting any time the petition took to process. Neither the statute nor regulations define when a visa becomes available for the CSPA age calculation. Beneficiaries must have also “sought to acquire” lawful permanent resident status within one year of the immigrant visa becoming available.
Before 2015, the visa availability date for both the CSPA age calculation and the “sought to acquire” requirement was based on a single chart published by the Department of State (DOS). That year, the DOS began to publish two charts—the “Dates for Filing” chart (notifying beneficiaries when they could begin to submit the required documents for their immigrant visa applications) and the “Final Action Dates” chart (indicating when a visa could be issued). This change allowed applicants to start the processing of their applications without having to wait until the visa could be issued.
Similarly, USCIS uses these charts to determine when it will accept and begin to process adjustment of status applications for preference category beneficiaries in the U.S. Every month, USCIS determines if there are more immigrant visas available for the fiscal year than there are known applicants. If so, beneficiaries may use the Dates for Filing chart, otherwise they must use the Final Action Dates chart.
In 2018, USCIS determined that it would use the Final Action Dates chart for the CSPA age calculation while allowing beneficiaries to file their adjustment of status applications using the Dates for Filing chart. This meant that though a noncitizen paid the fee and filed their application based on the Dates for Filing chart, ultimately, they could age out and not be eligible for adjustment because their CSPA age calculation was based on the later occurring Final Action Dates chart.
Despite criticism, and partially the result of a lawsuit brought on behalf of documented Dreamers who had aged out under the 2018 guidance, USCIS updated this policy on February 14, 2023. The agency would now consider an immigrant visa becoming available for the CSPA age calculation at the same time it considered a visa immediately available for accepting and processing the adjustment of status application. In addition, the update referenced that previously denied applications could be reopened by filing a motion to reopen and the 30-day filing deadline for such motion could be waived if the delay was reasonable and beyond the control of the noncitizen.
Though welcome, the change left many questions, especially for those who were unable to file their adjustments and, thus, could not meet the requirement to have sought to acquire lawful permanent resident status within one year. For example, some noncitizens may have never applied under the Dates for Filing chart because, unwilling to pay the fees amidst uncertainty, they decided to wait for their priority date to become current under the Final Action Dates chart. Others, while waiting for their priority dates to become current under the Final Action Dates chart, may have simply aged out and never filed or filed but had their application denied by USCIS because their CSPA age was over 21 under the previous guidance. Also, USCIS’ February policy change didn’t address how noncitizens with pending applications who met the previous guidance’s CSPA age interpretation would be affected by the new policy.
On August 24, 2023, USCIS updated its policy manual to address these concerns. Specifically, USCIS considered the February 14, 2023, policy change an “extraordinary circumstance” that could form the basis for the excusal of the one-year sought to acquire requirement. USCIS explicitly stated those who failed to apply because their CSPA age could not be calculated or their CSPA age was over 21 years of age under the former guidance could be eligible for the CSPA’s age-out protection. Additionally, any pending application that was filed under the previous guidance would be considered as having satisfied the one-year sought to acquire requirement.
Unfortunately, though USCIS has taken positive steps to provide noncitizen children in the US with certainty about their CSPA age, the DOS still has not updated its guidance. The Foreign Affairs Manual, which governs consular processing cases and guides consular officer’s visa adjudications abroad, still states that the Final Action Dates chart is used for CSPA age calculations. This not only causes confusion, but it harms the youth who are made ineligible for an immigrant visa because they age out under this more restrictive interpretation.
The bigger issue, however, is the ever-growing visa backlog. Over 250,000 documented dreamers face the possibility of aging out of their dependent visas and, if they’re derivatives on their parents’ green card applications, may age out while waiting for a change in the Dates for Filing chart. These youth must find another way to stay or face the difficult situation of having to depart the U.S.
To its credit, the Biden administration has taken additional steps to address the harms caused by the visa backlog. For example, in July it established a new family reunification parole (FRP) program for U.S. citizens or lawful permanent residents who have family members abroad from Colombia, El Salvador, Guatemala, and Honduras and have approved I-130 petitions. If invited to participate, these family members could enter the U.S. on parole and wait within the U.S. for their visa. In August, the administration also announced the modernization of the previously established FRP programs for Cubans and Haitians.
There are also several bipartisan proposals pending in Congress that aim to eliminate visa backlogs for both family and employment-based preference categories and that specifically provide relief to documented dreamers by providing them a pathway to citizenship.
Though USCIS’ recent changes make the system function more fairly, this isn’t a long-term fix.
It’s clear that Congress must act to provider greater structural changes to protect these immigrant youth.