New USCIS policy to help aged out Indian children

Under new policy age will be calculated on the basis of dates for filing instead of final action date

In a move that would help children of Indian and other immigrants who cannot get green cards with their parents on turning 21 or aging out, USCIS has changed the way ‘age’ is calculated.

Under the new guidance issued Tuesday, USCIS will now use the Dates for Filing instead of Final Action Date for calculating a noncitizen’s age under the Child Status Protection Act (CSPA) when an immigrant visa number “becomes available.”

Read: USCIS releases new design for green cards (January 31, 2023)

This USCIS policy change is effective immediately and applies to pending applications. Therefore, some noncitizens with a pending application may now have a CSPA age that is under 21 based on this change.

If these noncitizens are eligible to adjust status because of the change in policy and they have filed for adjustment of status, they will also be eligible to apply for employment and travel authorization based on their pending adjustment of status application, and they generally will not lose previously issued employment or travel authorization, USCIS said.

Noncitizens may file a motion to reopen their previously denied adjustment of status application with USCIS by using Form I-290B, Notice of Appeal or Motion, it said.

Noncitizens must generally file motions to reopen within 30 days of the decision, it said. For a motion filed more than 30 days after the denial, USCIS may, in its discretion, excuse the untimely filing of the motion if the noncitizen demonstrates that the delay was reasonable and was beyond the noncitizen’s control.

“I am grateful that @USCIS has taken action to protect some of the 200,000 Documented Dreamers who call the United States home. But we cannot stop here. We must act and pass my bipartisan America’s CHILDREN Act to provide a pathway to citizenship for all Documented Dreamers,” Congresswoman Deborah Ross tweeted.

Read: USCIS expanding premium processing for EB-1 and EB-2 (January 13, 2023)

According to estimates, as of April 2020, there were an estimated 253,293 children awaiting permanent residency based on their parents’ employment-sponsored visas.

For a child to obtain lawful permanent resident status in the United States based on their parent’s approved petition for a family-sponsored or employment-based visa, the child generally must be under the age of 21, USCIS noted.

If the child turns 21 and “ages out” during the immigration process, the child generally is no longer eligible to immigrate with the parent based on the parent’s petition.

Congress enacted the CSPA to protect certain noncitizen children from losing eligibility to obtain lawful permanent resident status based on an approved visa petition by providing a method to calculate the child’s age that considers when an immigrant visa number “becomes available,” the immigration agency said.

The Department of State’s Visa Bulletin is used to determine when a visa number becomes available. The Visa Bulletin has two charts – the Dates for Filing chart and the Final Action Date chart.

Under the previous CSPA guidance, USCIS considered a visa available for purposes of the CSPA age calculation based only on the Final Action Date chart, even if a noncitizen could apply for adjustment of status using the earlier date in the “Dates for Filing” chart.

Read: US updates immigration rules: Indian kids now closer to American Dream (February 16, 2023)

For example, between October and December of 2020, certain noncitizens were permitted to file their adjustment of status applications under the Dates for Filing chart of the Visa Bulletin.

However, the Final Action Date chart never advanced sufficiently for their applications to be approved. These noncitizens filed their adjustment of status applications with the requisite fee without knowing whether the CSPA would benefit them.

The Policy Manual update will not prevent all children from aging out before an immigrant visa is available to them, nor will it prevent children from losing nonimmigrant status derived from their parents upon reaching the actual age of 21, USCIS cautioned.