Updated guidance changes age calculation for green card purposes

U.S. Citizenship and Immigration Services announced updated guidance Tuesday regarding when an immigrant visa number “becomes available” for the purpose of calculating a noncitizen’s age under the Child Status Protection Act (CSPA).

Key Points:

• Generally, children must be under the age of 21 in order to obtain lawful permanent resident status in the U.S. based on a parent’s approved petition for a family-sponsored or employment-based visa.
• Under the Child Status Protection Act (CSPA), some noncitizen children are protected from losing eligibility to obtain lawful permanent resident status based on a method of calculating the child’s age that considers when an immigrant visa number “becomes available.”
• Up until now, USCIS considered a visa available for purposes of the CSPA age calculation based only on the State Department Visa Bulletin’s Final Action Date Chart, even if a noncitizen was eligible to file for adjustment of status under the Dates for Filing chart.
• Under the new guidance, USCIS will instead use the Dates for Filing chart, which has more progressive priority-date cutoffs, for purposes of the CSPA calculation for individuals who were eligible to file based on the Dates for Filing chart. This change will provide more certainty to applicants about their eligibility to adjust status.
• The change will take effect immediately and will apply to new and pending applications. More information is available here.

BAL Analysis: Top companies and immigration organizations have urged the Biden administration to take steps to protect children who “age out” of their status while their parents wait for green cards to be processed. While the updated guidance will not protect all children who age out, it will protect those who are eligible to file for adjustment of status based on the Dates for Filing chart. USCIS said it “continues to explore all options available under the law to aid this population.” BAL will provide updates as information becomes available.

This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.

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