By Rebecca S. Singh, Esq. and Joanna Lee, Esq.
For EB-5 Immigrant Investors who have been waiting patiently (and not so patiently) over the last few years as USCIS slowly works its way through the backlog of EB-5 petitions, the ability to file adjustment of status can add a layer of security welcomed by most in order to live, work and travel while awaiting adjudication under the Immigrant Investor Program if they are lawfully in the United States. But what about age-outs, children who turn 21 before they could be issued a visa – does filing an adjustment of status application help freeze the dependent child’s age?
In a 2022 blog post[1], we analyzed that Chart B, Dates For Filing, did not benefit age-out children. However, new policy guidance was announced earlier this year where Chart B could further help potential age-out children. But of course, with caveats!
What is the Child Status Protection Act (CSPA)?
Effective August 6, 2002, the CSPA was enacted to preserve child status for certain beneficiaries who would otherwise “age out” by turning 21 years old, effectively moving them out of dependent status, due to administrative delays in visa processing.
Under the Immigration and Nationality Act (INA), a “child” is a person who is unmarried and under 21 years old. Importantly, CSPA does not change this definition but instead provides a method for calculating a person’s “CSPA age” that allows some over the age of 21to remain classified as children. Please note that the unmarried requirement remains as is to be eligible.
The original Act calculates the child’s age based on the date an immigrant visa becomes available, but only if the child seeks to acquire lawful permanent resident status within 1 year of such immigrant visa availability.
Even with the enactment of the CSPA, many children over the years have aged out. A child’s age would freeze at the time of filing, for instance, the I-526 petition. However, once that petition is approved, the child’s age begins to run again if an immigrant visa is not available at that time. A child could potentially age out if the wait time for a visa is longer than the adjudication of the underlying (e.g., I-526) petition. Confusing, right?
Determining Visa Availability – More Complications for Age-Outs
Neither the statue nor regulation actually defines when a visa becomes available for purposes of the CSPA age calculation. Lacking any precedent federal court decisions or published administrative decisions, USCIS has published several policies aimed to define this vague section.
Visa availability is determined by the U.S. Department of State’s (DOS) Visa Bulletin. Prior to 2015, there was only one “Final Action Dates” chart that was used to determine visa availability. Since October 2015, DOS started publishing two charts in the Visa Bulletin – a “Dates for Filing” chart and a “Final Action Dates” chart[2]
See Adjustment of Status Filing Charts from the Visa Bulletin | USCIS.
“Dates for Filing” notifies beneficiaries when they may assemble and submit required documents to the DOS National Visa Center (NVC). “Final Action Dates” informs when a visa is authorized for issuance. Being able to file for adjustment of status under Chart B, “Date for Filing”, helped in relieving pressure from the long adjudication delays, but it did not necessarily help potential age-out children as Chart B could not be used to determine when the visa became available. Dependent children wasted time and money filing for adjustment of status under Chart B to later be denied once the Final Action Date became current and was determined by USCIS that the child had aged out.
What has USCIS Done to Help?
In a series of published guidance’s since 2018, the Service has piecemealed clarifications from the initial Act – a sadly unsurprising and now normal way of patching up broad regulations and statutes that lack clear definitions or defined terms for legal practitioners and non-citizens to follow.
Previous Service guidance only used the Final Action Dates chart for visa availability CSPA age calculations which led to contradictory dates as an individual could have a visa immediately available for purposes of filing an adjustment application (under Dates for Filing) but not have a visa become available for purposes of CSPA calculation (Final Action Dates). A situation that left individuals to file adjustment applications while not knowing whether they benefited from CSPA age-out protections.
However, with the significant processing delays, USCIS announced, in January 2020, a policy change to the adjudication of the I-526 petitions, from a “first-in, first-out” basis to a “visa availability approach”. For investors from backlogged countries, such as China, Vietnam and India, the delay in adjudicating the I-526 petition is advantageous to potential age-out children[3] This way, USCIS would not adjudicate a petition from a backlogged country until a visa is soon to be available, allowing more children to benefit from the CSPA age calculation. The visa availability approach was again updated in July 2023 to help streamline adjudication of the I-526 petitions based on another policy change in February 2023 to further protect age-out children when filing under Chart B.
The long-awaited February 14, 2023 policy alert finally clarified that the CSPA age calculation for adjustment of status will be determined by the chart USCIS is using for that given month. This is welcoming news if USCIS allows for adjustment of status under Chart B. As we have seen over the years, USCIS has many of times opted to only accept adjustment of status filings under Chart A, Final Action Date.
The February 2023 policy update, while helpful, failed to provide remedies for those who did not timely seek to acquire lawful permanent resident status within 1 year of immigrant visa availability based on USCIS policy guidance prior the February 14, 2023 policy update.
In an effort to clear up confusion amidst the repercussions of USCIS’s February 14, 2023 policy guidance, the Service issued a follow-up policy guidance update on August 24, 2023 specifically related to the “Sought to Acquire” provision under the Child Status Protection Act (CSPA).
The August 24, 2023 Policy Alert allows for those who failed to file adjustment within 1 year of visa availability due to the Service’s previous inconsistent visa availability policies as to when CSPA age may be calculated, may now file under “extraordinary circumstances” to excuse an applicant’s failure to meet the “sought to acquire” requirement based on the February 14, 2023 policy change.
Takeaway for EB-5 Applicants Adjusting Status
The big takeaway for -EB-5 petitioners is that if one failed to apply for adjustment of status because USCIS could not calculate their CSPA age or the CSPA age would have been calculated as over 21 years old under the prior policy – but they are now eligible based on the February 14, 2023 policy – they may file for adjustment using the February 14, 2023 policy as an extraordinary circumstance for their prior failure to file adjustment and USCIS will accept this reason as long as it is reasonable under the circumstances. The reasonableness of the delay is determined from August 24, 2023.
CSPA and Consular Processing
While this latest policy is an improvement in equitably applying the latest policy to not just those are currently applying for adjustment but for those who “missed” this opportunity due to prior enacted policies, the DOS has not confirmed whether they too will accept the Date for Filing chart for purposes of age-out protection at the consular level.
There could be potential good news in the future as the U.S. Department of State confirms they are “revising the procedures for determining visa availability for applicant waiting to file for employment-based or family-sponsored preference adjustment status” in coordination with USCIS. However, such revised process “will better aligned with procedures State uses for foreign nationals who seek to become U.S. permanent resident by applying for immigrant visas at U.S. consulates and embassies abroad.” We will have to wait and see if the DOS will align more with USCIS’s currently more favorable approach using both Chart A and Chart B of the visa bulletin or if USCIS will one again become more strict in which chart it uses as is the current practice of the DOS.
“USCIS, in coordination with Department of State, is revising the procedures for determining visa availability for applicants…” – U.S. Department of State
Until such time that USCIS and the DOS can work uniformly in applying policies across the board for such green card benefits, there will continue to be confusion for those simply trying to follow the law in acquiring lawful permanent residence. I say, why not be done with the confusion of the CSPA and just allow any dependent who filed: 1) prior to the age of 21, 2) still unmarried, and 3) seeks to acquire within one year of visa availability be included no matter the wait time—isn’t the U.S. all about family unity at the end of the day?!
[1] Mona Shah, Esq. & Rebecca S. Singh, Esq, “India Headed For EB-5 Visa Backlog Once Again” Mona Shah & Associates Global, September 8, 2022, India Headed for EB-5 Visa Backlog Once Again – Mona Shah & Associates Global (mshahlaw.com).
[2] Rebecca S. Singh, Esq., “The Visa Bulletin: What It Is And What It Actually Means” Mona Shah & Associates Global, November 27, 2018, The Visa Bulletin: What It Is and What It Actually Means – Mona Shah & Associates Global (mshahlaw.com).
[3] For further reading, see Mona Shah, Esq. & Rebecca S. Singh, Esq., “USCIS Re-Prioritizes The EB-5 Adjudication Process: An Analysis!” Mona Shah & Associates Global, February 13, 2020, USCIS RE-PRIORITIZES THE EB-5 ADJUDICATION PROCESS: AN ANALYSIS! – Mona Shah & Associates Global (mshahlaw.com).