Big Change Regarding Child Status Protection Act (CSPA)

[Attorney_22]

This week, Murthy Law Firm attorneys will answer questions regarding the Child Status Protection Act.

If you have a general question, but do not wish to post it in the forum, you may reach a representative at the Murthy Law Firm via eMail. Please allow 3-to-5 business days for a response. Or, if you have case specific questions, please schedule a consultation with a Murthy Law Firm attorney.    

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[mrzeal05]

My lawyer said that your daughter would not be eligible for a “freeze” in her age under the Child Status Protection Act because your priority date was current at the time your I-140 was approved.
My case - EB2
My I-140 approved on Aug/2022
My AOS filed on Sept/13/2022
My daughter age when I-140 approved was - 18 years 7 months 27 days
My PD - Nov/19/2010

Pls. share your views or provide some guidance.

[newacct]

13 hours ago, mrzeal05 said:

My lawyer said that your daughter would not be eligible for a “freeze” in her age under the Child Status Protection Act because your priority date was current at the time your I-140 was approved.
My case - EB2
My I-140 approved on Aug/2022
My AOS filed on Sept/13/2022
My daughter age when I-140 approved was - 18 years 7 months 27 days
My PD - Nov/19/2010

Pls. share your views or provide some guidance.

If the priority date was current at the time the I-140 was approved, then the date a visa number became available for CSPA purposes will be the I-140 approval date. Her CSPA age is her age at the time a visa number became available, minus the amount of time the I-140 was pending (i.e. the time from I-140 filing to I-140 approval), which will equal her age at the time the I-140 was filed. Her age will be effectively "frozen" at her age at the I-140 filing date, assuming there is no retrogression.

[Tacos]

Does this new CSPA change help reopen a denial case if they filed I-485 in 2018 using filing dates (under 21) got EAD/renewal but later denied in 2020 due to age out (final action date). Can they file MTR now? If so how long will it take?

[Girishwar]

My parents did not file my  i485 when their PD became current per Oct20 Visa Bulletin's  "Date of filing", though I was 20 years and 9 months only at that time, for the simple reason that my change of status petition (from H4 to F1) was pending (cos petition was filed in January 2020) with USCIS then. Since I had only 7 days (i140 was on premium processing and got approved within a week)  to add to my age for CSPA purpose, we chose not to file i485 (as USCIS did not allow "age freezing" for 485s filed based on Date of Filings then) in order to protect COS petition (as lawyers opined that 485 filing would show "immigration intent" that would jeopardize F1 petition). In Jan 2021, I became 21 yrs (CSPA age) and hence could not file i485 when my parents PD became current per Jul21 Visa Bulletin's  "Date of final action"). My parents eventually filed I130 (F2B) petition in Sep 2021 immediately after getting their green cards (not sure if this petition would suffice "seek to acquire" requirement. It was within one year from Oct 2020....)

Now that USCIS has brought in this change (allowing age freezing for 485s filed based on Date of filings), can I file 485 now citing extra ordinary circumstance (current USCIS change re CSPA, (i.e) guidance in the policy manual dated Feb14, 2022 and my pending change of status petition then) as a justifications for having not "sought to acquire" within 1 year period.

Please advise. 

Many Thanks.

Girish

 

 

[Attorney_15]

On 2/16/2023 at 11:58 PM, mrzeal05 said:

My lawyer said that your daughter would not be eligible for a “freeze” in her age under the Child Status Protection Act because your priority date was current at the time your I-140 was approved.
My case - EB2
My I-140 approved on Aug/2022
My AOS filed on Sept/13/2022
My daughter age when I-140 approved was - 18 years 7 months 27 days
My PD - Nov/19/2010

Under the law a visa does not technically become available until the I-140 Petition is approved. However, the approval of the I-140 Petition does not lock in a person's age. The benefit of this is that it does not compel a person to file an I-485 before and until the I-140 is approved.  The  CSPA requirement is to seek the visa within 1 year of it becoming available. This creates 2 questions: When is the I-140 approved? and When did the PD first become current? If the PD first became current on the date the I-140 was approved (because it was current per the Visa Bulletin), then the child must file their I-485 within 1 year of that date (subject to certain other exceptions). However, if the child did in fact file their I-485 within one year from that date - the I-140 approved and the PD current - then the child's age would normally be considered locked in.

[Attorney_15]

On 2/17/2023 at 2:18 PM, Tacos said:

Does this new CSPA change help reopen a denial case if they filed I-485 in 2018 using filing dates (under 21) got EAD/renewal but later denied in 2020 due to age out (final action date). Can they file MTR now? If so how long will it take?

The new USCIS CSPA guidance can definitely be used as the basis for an MTR right now. In fact, one should file such an MTR as soon as possible. If the reason a person's I-485 was denied is because of having aged out, where the denial from USCIS stated that the person's age was not locked in because the Dates for Filing were current but not the Final Action dates, then this new guidance can be used to seek the denial's reversal.  

As far as processing times, MTR processing times vary from a few weeks to several months. There are no official posted processing times for MTRs. 

[Attorney_15]

On 2/18/2023 at 1:30 AM, Girishwar said:

Now that USCIS has brought in this change (allowing age freezing for 485s filed based on Date of filings), can I file 485 now citing extra ordinary circumstance (current USCIS change re CSPA, (i.e) guidance in the policy manual dated Feb14, 2022 and my pending change of status petition then) as a justifications for having not "sought to acquire" within 1 year period.

So at Murthy Law Firm we actually were just discussing this very issue. In our humble opinion, filing the I-485 now based on an extraordinary circumstances argument is possible. However, a big caution, USCIS has made no statement regarding this course of action and so it is completely unknown whether such a filing will be successful. It is definitely an argument that can be made for you and for many other people who are likely in the same situation.

[Anonymity123]

Hello, I was 19 years old when my PD (Dec 2014) was current in date of filing. My parent filed I485 but I did not. My date has since retrogressed and I am now 21 and on F1 status. My parent's I485 has not been adjudicated due to retrogression. Can I file based on extraordinary circumstance despite retrogression?

[Attorney_22]

On 2/25/2023 at 4:32 PM, Anonymity123 said:

Hello, I was 19 years old when my PD (Dec 2014) was current in date of filing. My parent filed I485 but I did not. My date has since retrogressed and I am now 21 and on F1 status. My parent's I485 has not been adjudicated due to retrogression. Can I file based on extraordinary circumstance despite retrogression?

This may be possible, to assess the viability of this filing call our office to speak with one of our attorneys focused on retroactive-CSPA AOS filings. 

[h1bissues2014]

Hello!

My dad filed his I-140 in December 2005 (PD July 2005, EB3 India) and at that time I was age of 20 years, 3 months . My parents received their GC July 2017 but I did not due to aging out. I am 37 years old now, unmarried on H1b. Can I file I-290B, Notice of Appeal or Motion with the new CSPA policy that just went in affect on Feb 14th, 2023? 

Any help would be greatly appreciated here.

Thanks!

Edited March 2, 2023 by h1bissues2014

[ashok sharma]

Sir,The amendment by USCIS in CSPA on 14th February, 23 is applicable to AOS cases and made Visa filing Chart B applicable for age freezing.

1. What are the chances of it being applicable to CONSULAR PROCESSING cases and when can it happen by amending FAM,  specially when CSPA is equally applicable to AOS and Consular Processing cases??

2. How much time does it take in FAM amendment?

[Attorney_22]

On 3/1/2023 at 9:24 PM, h1bissues2014 said:

Hello!

My dad filed his I-140 in December 2005 (PD July 2005, EB3 India) and at that time I was age of 20 years, 3 months . My parents received their GC July 2017 but I did not due to aging out. I am 37 years old now, unmarried on H1b. Can I file I-290B, Notice of Appeal or Motion with the new CSPA policy that just went in affect on Feb 14th, 2023? 

Any help would be greatly appreciated here.

Thanks!

It sounds like the CPSA USCIS guidance revision is unlikely to help you. But to confirm, I advise you speak directly with a U.S. immigration attorney. You will need to know the date your father's PD was current and how long his I-140 was pending.  

[Attorney_22]

9 hours ago, ashok sharma said:

Sir,The amendment by USCIS in CSPA on 14th February, 23 is applicable to AOS cases and made Visa filing Chart B applicable for age freezing.

1. What are the chances of it being applicable to CONSULAR PROCESSING cases and when can it happen by amending FAM,  specially when CSPA is equally applicable to AOS and Consular Processing cases??

2. How much time does it take in FAM amendment?

There is no planned revision to the FAM that I am aware of. 

[ashok sharma]

Myself  and My wife  got I - 551 (Green card) stamped on 29th November, 2022 in U.S. Consulate General, Mumbai. Its in F - 4 category.
My son , however did not qualify for CSPA to immigrate and the same was denied. He is eligible on VISA Filing as per  Chart B , but aged out as per Chart A.. 

With changes declared in Policy of CSPA on 14th February, 2023 by USCIS that VISA Filing Chart B in Visa Bulletin shall be considered for CSPA age calculation, where to take up the matter... Your last Bulletin has shown some ray of hope that DOS may consider it.. 

what is latest about this?
 

[mraus2003]

I have questions related to eligibility to refile I-485 based on new updated CSPA guideline.

My Employer filed my green card and following are the dates for the process. When my filing date became current I filed AOS I-485 for myself, wife and Son but didn't file I-485 for my daughter even though she was eligible to file I-485 based on her CSPA age. The reason not to file was as the USCIS was looking for final action date to approve I-485 and in my case there was no possibility that my final action date has move forward enough for my daughter to qualify and her application to get approved. Knowing that I didn't want to take chance for filing and getting denied later which might have made her Out of status cause and further issues for staying her in US.
Now question is, with new CSPA rule change can we refile her I-485 as the new policy allows us to use filing date for CSPA calculation and freeze the child's age. Can we justify USCIS that if this rule was applied during my filing process, we would have filed her I-485 knowing that it would have been approved without any issue. Can we file I-485 based on extra ordinary circumstance (current USCIS change in policy related to CSPA )?
What are the options do I have as of now and is you law firm can take this kind of case and file her I-485 and explain the situation to USCIS to accept her I-485 application and process it?

Priority Date -         Dec 21 2009
I-140 filing Date -     Sep 16 2014
I-140 approval Date -     Mar 27 2015
Total days for I140 Processing - 192 days (6 month 11 days)
Date of filing become current - Dec 2018 visa bulletin
CSPA age of my daughter when filing date become current - approx. 20 years 7 months
Date for Final action date become current – Oct 2020.

I would really appreciate you expert guidance on this case.

Thanks

[Attorney_15]

On 3/1/2023 at 9:24 PM, h1bissues2014 said:

My dad filed his I-140 in December 2005 (PD July 2005, EB3 India) and at that time I was age of 20 years, 3 months

Under the new USCIS policy on the CSPA, if you filed an I-485 at that time and it was denied because your age was not locked in by the CSPA, then it should be possible to challenge that decision by filing a Motion. 

[Attorney_15]

On 3/8/2023 at 12:44 PM, ashok sharma said:

With changes declared in Policy of CSPA on 14th February, 2023 by USCIS that VISA Filing Chart B in Visa Bulletin shall be considered for CSPA age calculation, where to take up the matter.

The Department of State has not made any statements indicating that they have a change in policy. However, one may want to try and contact the Consulate and/or State Department about a visa refusal to see if it can be reversed in a particular case. You may wish to consult directly with an attorney at Murthy Law Firm for specific advice: https://www.murthy.com/consultations/

[Attorney_15]

On 3/8/2023 at 3:26 PM, mraus2003 said:

Now question is, with new CSPA rule change can we refile her I-485 as the new policy allows us to use filing date for CSPA calculation and freeze the child's age. Can we justify USCIS that if this rule was applied during my filing process, we would have filed her I-485 knowing that it would have been approved without any issue. Can we file I-485 based on extra ordinary circumstance (current USCIS change in policy related to CSPA )?

USCIS has not made any statements about people who did not file the I-485 when the Dates for Filing became current. However, an argument can certainly be made that with filing an I-485 now that it was because of the USCIS policy that your daughter did not file the I-485 she should be allowed to do so now. She may wish to consult an attorney at the Murthy Law Firm to verify whether there is any reason not to do so. A consultation can be arranged with an attorney per the instructions here: https://www.murthy.com/consultations/

[Attorney_15]

On 2/16/2023 at 11:58 PM, mrzeal05 said:

My lawyer said that your daughter would not be eligible for a “freeze” in her age under the Child Status Protection Act because your priority date was current at the time your I-140 was approved.
My case - EB2
My I-140 approved on Aug/2022
My AOS filed on Sept/13/2022
My daughter age when I-140 approved was - 18 years 7 months 27 days
My PD - Nov/19/2010

The USCIS update to its CSPA Guidance (https://www.uscis.gov/newsroom/alerts/uscis-updates-policy-guidance-for-the-sought-to-acquire-requirement-under-the-child-status) now means that on a daughter (or son) in this situation can file the I-485 as a "child" under US Immigration Laws by showing that this person could have filed the I-485 at the time of the main I-485 applicant but didn't because of the USCIS interpretation of the law then in effect. 

[Attorney_15]

On 2/17/2023 at 2:18 PM, Tacos said:

Does this new CSPA change help reopen a denial case if they filed I-485 in 2018 using filing dates (under 21) got EAD/renewal but later denied in 2020 due to age out (final action date). Can they file MTR now? If so how long will it take?

Under the new USCIS CSPA Guidance (https://www.uscis.gov/newsroom/alerts/uscis-updates-policy-guidance-for-the-sought-to-acquire-requirement-under-the-child-status) a person who filed the I-485 that was denied should be able to file an MTR or file a new I-485 assuming that nothing new has come up that would create an issue. Depending upon the person's circumstances one route may be better than the other. Such a decision is usually best made in consultation with an experience lawyer.

[Attorney_15]

On 2/18/2023 at 1:30 AM, Girishwar said:

Now that USCIS has brought in this change (allowing age freezing for 485s filed based on Date of filings), can I file 485 now citing extra ordinary circumstance (current USCIS change re CSPA, (i.e) guidance in the policy manual dated Feb14, 2022 and my pending change of status petition then) as a justifications for having not "sought to acquire" within 1 year period.

USCIS's latest CSPA Guidance (https://www.uscis.gov/newsroom/alerts/uscis-updates-policy-guidance-for-the-sought-to-acquire-requirement-under-the-child-status) now actually says your circumstances will be treated as an extraordinary circumstance under the law. 

[Attorney_15]

On 2/25/2023 at 4:32 PM, Anonymity123 said:

Hello, I was 19 years old when my PD (Dec 2014) was current in date of filing. My parent filed I485 but I did not. My date has since retrogressed and I am now 21 and on F1 status. My parent's I485 has not been adjudicated due to retrogression. Can I file based on extraordinary circumstance despite retrogression?

Under the USCIS update to its CSPA Guidance (https://www.uscis.gov/newsroom/alerts/uscis-updates-policy-guidance-for-the-sought-to-acquire-requirement-under-the-child-status) this instance should fall within the extraordinary circumstances exception. The law does provide circumstances when someone is in the USA in F-1 status it might still be allowable to file the I-485 Application. Eligibility to be a child, however, still does require one to be unmarried.

[Attorney_15]

On 3/1/2023 at 9:24 PM, h1bissues2014 said:

My dad filed his I-140 in December 2005 (PD July 2005, EB3 India) and at that time I was age of 20 years, 3 months . My parents received their GC July 2017 but I did not due to aging out. I am 37 years old now, unmarried on H1b. Can I file I-290B, Notice of Appeal or Motion with the new CSPA policy that just went in affect on Feb 14th, 2023? 

Even under the updated CSPA Guidance (https://www.uscis.gov/newsroom/alerts/uscis-updates-policy-guidance-for-the-sought-to-acquire-requirement-under-the-child-status) one has to establish their eligibility by showing that when the visa number first became current they qualified as a child.

[Attorney_15]

On 3/7/2023 at 11:54 PM, ashok sharma said:

1. What are the chances of it being applicable to CONSULAR PROCESSING cases and when can it happen by amending FAM,  specially when CSPA is equally applicable to AOS and Consular Processing cases??

2. How much time does it take in FAM amendment?

The updated CSPA Guidance (https://www.uscis.gov/newsroom/alerts/uscis-updates-policy-guidance-for-the-sought-to-acquire-requirement-under-the-child-status) from USCIS does not - unfortunately - mean that Consular Processing will be possible. However, if the person is still unmarried, the parent who was the I-140 beneficiary can filed an I-824 to notify the State Department and NVC that there is a child who is now eligible under the extraordinary circumstances provision to follow to join in the same EB category.