New USCIS Policy Manual Update Consolidates Child Status Protection Act Policy

On May 23, 2018, The U.S. Citizenship and Immigration Services (USCIS) updated its online policy guidance related to the Child Status Protection Act (CSPA). The USCIS update to the online policy manual consolidates all CSPA guidance in one location, and supersedes prior memos and judicial decisions dealing with the CSPA.

Background and Purpose of CSPA

The CSPA was enacted in order to keep immigrant families intact despite family-based and employment-based waiting times which can range up to 23 years or more. It is meant to ensure that sons and daughters can immigrate to the U.S. together with their parents.

Prior to CSPA, once a child turned 21 years of age, he or she “aged-out” and was no longer able to immigrate (or adjust status) along with his or her parents. CSPA “freezes the age” of immediate relative children when their petitioning U.S. citizen parent submits a visa petition on their behalf; when a petitioning permanent resident parent naturalizes; or when a married son or daughter who has been petitioned by a U.S. citizen parent becomes divorced or widowed.

Purpose of Update to CSPA

This update to the CSPA, contained in Volume 7, Part A of the Policy Manual, replaces the guidance found in Chapters 21.2(e)(1)(i)(A), 21.2(e)(1)(ii)(A), 21.2(e)(1)(ii)(C)-(E), 21.2(e)(2)(iii)-(iv), and 21.2(e)(4)-(5) of the Adjudicator’s Field Manual (AFM). This guidance is controlling and supersedes any prior guidance on the topic. Additional guidance that is specific to only certain immigrant classifications will be published in the Policy Manual volumes and parts pertaining to those immigrant classifications.

Policy Update Highlights

• Explains general applicability of the CSPA and clarifies eligibility and evidentiary requirements.
• Consolidates previous guidance and incorporates judicial interpretations.
• Explains how the Visa Bulletin charts impact CSPA calculations and eligibility determinations.

Policy Guidance Clarifies That the “Final Action” Chart Must be Used to Evaluate CSPA Eligibility

Via this update, USCIS, clarifies how the CSPA is to be applied in light of the dual chart system of the Visa Bulletin, which came into effect in the October 2015 Visa Bulletin. Previously CSPA calculations were made problematic because it was not clear when the priority date “first became available”. The new USCIS guidance explains that the date listed in the Final Action chart, rather than the more favorable Dates for Filing chart, is the date the foreign national must use for purposes of calculating whether they qualify for immigration benefits under the CSPA.

The guidance explains that, even if a person is able to apply for an immigrant visa or adjustment of status (form I-485) based on the Dates for Filing chart, the application can ultimately be denied if the applicant ages out by the time the priority date becomes current under the Final Action chart.