Child Status Protection Act May Offer Hope to Dependents Aging Out of Green Card Eligibility After AOS Retrogression

With the recent retrogression of employment-based priority dates for the EB-2 and EB-3 India and mainland China categories, many families with dependents nearing the age of twenty-one may be concerned about the impact these delays will have on their children’s green card applications. Fortunately, the Child Status Protection Act (CSPA) was implemented to provide some protection to dependents who turn twenty-one while waiting for their pending green card applications to be approved. Unfortunately, the CSPA is not very intuitive, particularly when it comes to calculating a dependent’s “CSPA age,” which is crucial to establishing eligibility for protection under the law.

Below, we provide an explanation of the CSPA criteria and examples of how to calculate the CSPA age of potential beneficiaries.

Eligibility Criteria Under the CSPA

In order to benefit from the CSPA, a dependent must meet all four of the following criteria:

1. The dependent must have an immigrant petition or adjustment of status (AOS) application pending on or after the CSPA effective date (August 6, 2002).
2. The dependent must have a calculated CSPA age under twenty-one (see below for instructions on how to calculate CSPA age).
3. The dependent must remain unmarried.
4. The dependent must have “sought to acquire” lawful permanent residence within one year of visa availability, absent extraordinary circumstances, in one of several specific ways (e.g., properly filing an AOS application within the required timeframe).

The primary challenge in determining who falls within the protection of the CSPA is calculating the dependent’s CSPA age. As discussed below, this calculation requires use of a formula that considers the amount of time the dependent has been waiting for an immigrant visa to become available.

Formulas for Calculating CSPA Age

The CSPA applies only to dependents with a CSPA age of less than twenty-one years old. The CSPA provides the following formula to calculate the adjusted CSPA age for employment-based preference AOS applicants:

Age at time of visa availability – length of time immigrant petition was pending = adjusted CSPA age

In order to calculate “age at time of visa availability,” according to the U.S. Citizenship and Immigration Services (USCIS) Policy Manual, two conditions must be met:

1. The immigrant petition on which the AOS is based (such as a petition based on Form I-140, Petition for Alien Worker) must be approved; and
2. The applicant’s priority date must be current under the Final Action Dates chart of the Visa Bulletin.

The dependent’s age at the time of visa availability would be based on the later of the two dates on which the conditions noted above occurred.

This raises a number of questions in terms of visa retrogression. The most puzzling of these questions is: what happens if the applicant’s priority date becomes current but then retrogresses before an I-140 petition can be approved? A situation such as this would indicate that both conditions were met, albeit not at the same time.

While the USCIS Policy Manual, a repository of all USCIS policies, does not provide clear answers to these questions, it does note that a dependent’s CSPA age will be locked in through final adjudication of the application if the dependent filed an AOS application based on the Final Action Dates chart and his or her CSPA age at the time of filing was under twenty-one.

Accordingly, a dependent may be eligible for green card approval despite a retrogression as long as:

1. the dependent is under 21 and has a pending AOS at the time the parent’s priority date becomes current under the Final Action Dates chart of the Visa Bulletin;
2. the associated I-140 petition is eventually approved; and
3. all other CSPA requirements are met.

Sample CSPA Age Calculations

The hypotheticals below illustrate how the CSPA age calculations work in practice:

Hypothetical One

In October 2020, the applicant’s mother filed I-140 and AOS applications for herself and the applicant while her priority date was current under the Dates for Filing chart. The applicant was born on January 5, 2000, and was twenty years old at the time her AOS application was filed. The I-140 petition was approved in October 2022 but the priority date has never been current under the Final Action Dates chart.

In this scenario, the applicant will not stand to benefit from an adjusted CSPA age. The applicant’s mother’s priority date was never current under the Final Action Dates chart, and therefore a visa was never made available to her. Even assuming that the mother’s priority date becomes current in November 2022 under the Final Action Dates chart, at the time of visa availability, the applicant would be twenty-two years and ten months old. Subtracting one year (the time her mother’s I-140 petition was pending) from this age, the applicant’s adjusted CSPA age would still be over the age of twenty-one, and she would not be eligible for dependent AOS approval.

Hypothetical Two

In October 2020, the applicant’s father filed I-140 and AOS applications for himself and the applicant while his priority date was current under the Dates for Filing chart. The applicant was born on January 5, 2000, and was twenty years old at the time his AOS application was filed. In October 2021, the father’s I-140 petition was approved, and in November 2021, his priority date became current under the Final Action Dates chart. In December 2021, the father’s priority date retrogressed.

In this hypothetical, the applicant’s date of visa availability would be based on when the applicant’s father’s priority date became current under the Final Action Dates chart in November 2021. The applicant’s age at that time would be twenty-one years and ten months old. His father’s I-140 petition was pending for one year. Subtracting the time the I-140 was pending from the applicant’s age at time of visa availability, the applicant’s adjusted CSPA age would be twenty years and ten months old. Therefore, he would be eligible for AOS approval under the CSPA, despite the December 2021 retrogression.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to the CSPA and will post updates on the Immigration blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.