USCIS Updates Policy Guidance on the “Sought to Acquire” Requirement Under the Child Status Protection Act

U.S. Citizenship and Immigration Services (USCIS) has issued further updates to its Policy Manual regarding the “sought to acquire” requirement under the Child Status Protection Act (CSPA). The latest revisions provide crucial clarifications on how to calculate CSPA age for noncitizens who demonstrate extraordinary circumstances, offering greater flexibility for those affected.

The key updates to the policy include:

• Clarification on CSPA Age Calculation: For applicants who can establish extraordinary circumstances and are excused from the “sought to acquire” requirement, the CSPA age will be calculated using the date the immigrant visa first became available, as long as the visa remained continuously available for a one-year period without any interruptions in availability.
• Effect of Visa Unavailability on CSPA Age: In cases where an immigrant visa became available and then unavailable, the CSPA age calculation may still use the date the visa first became available if the applicant can demonstrate extraordinary circumstances for not applying for adjustment of status before the visa became unavailable.

These updates address a gap in the previous guidance, which did not explicitly cover how extraordinary circumstances impacted the CSPA age calculation when the “sought to acquire” element was excused within the period the visa first became available. USCIS has updated this guidance to ensure more efficient and consistent adjudications in these cases, offering critical clarification for impacted applicants and their families.

How an Aging-Out Child Can Benefit from the Child Status Protection Act (CSPA)

The Child Status Protection Act (CSPA) is a U.S. immigration law enacted in 2002 to help protect certain children from “aging out” of eligibility for immigration benefits due to delays in the processing of their applications. Normally, a child is defined as being under 21 years old for immigration purposes. When processing delays occur, a child might turn 21 before the immigration application is completed, thus aging out and becoming ineligible for benefits as a “child.” CSPA was designed to prevent this from happening by allowing certain children to “freeze” their age under specific conditions.

Key Features of the CSPA:

1. Age Calculation: The CSPA allows some children to retain eligibility even after turning 21 by freezing their age at a younger point during the immigration process. For example, for  certain applicants, the age is calculated based on when the petition was filed, subtracting the time the petition was pending.
2. Eligibility for Certain Immigration Categories: The CSPA applies to beneficiaries of the following types of immigration applications:
   • Family-based petitions (e.g., Form I-130)
   • Employment-based petitions (e.g., Form I-140)
   • Diversity visa lottery
   • Refugee and asylee applications
   • Some humanitarian programs
3. “Sought to Acquire” Requirement: After an immigrant visa becomes available, the child must generally seek to acquire lawful permanent resident (LPR) status within one year to benefit from CSPA protection. This requirement can be excused in cases where extraordinary circumstances are demonstrated.

Who Can Benefit from CSPA:

1. Family-Based Petitions: If a U.S. citizen or lawful permanent resident petitions for a child, and the petition is subject to delays, CSPA may freeze the child's age and prevent them from aging out once they turn 21.
2. Employment-Based Petitions: Children of employment-based petition beneficiaries may also be protected from aging out if the principal beneficiary's petition is delayed.
3. Refugees and Asylees: Children of refugees and asylees may benefit from CSPA to prevent them from losing eligibility as derivative beneficiaries if they turn 21 during the application process.

4. Diversity Visa Applicants: If a parent wins the diversity visa lottery and includes their children, CSPA may protect a child who turns 21 before the immigrant visa is processed.

How to Benefit from CSPA:

1. Understanding Age Calculation: Determine how long your petition was pending and subtract that time from the child's age at the time the visa became available.
2. Monitor Visa Bulletin: For family and employment-based immigration, check the Visa Bulletin regularly to understand when a visa becomes available.
3. File Within One Year: It's important to file for adjustment of status or an immigrant visa within one year of visa availability to benefit from CSPA protection, unless extraordinary circumstances prevent this, which can potentially be excused.

How CSPA Helps Aging-Out Children:

Without CSPA, children who turn 21 before their immigration application is approved may lose eligibility for certain visas and other immigration benefits. By freezing their age, CSPA gives families more time to complete the immigration process without losing status for their children, helping to keep families united during lengthy immigration backlogs.

We hope you find this information valuable. If you have any questions or require legal assistance related to any of these updates, please don't hesitate to contact us. We are here to help.

Sincerely,

Keshab Raj Seadie, Esq.
Law Offices of Keshab Raj Seadie, P.C.

Disclaimer: This newsletter is intended for informational purposes only and does not constitute legal advice. Always consult an attorney for personalized advice.