United States: USCIS Gives Beneficiaries of Revised Age-Out Policy Extra Time to File for Adjustment of Status

For a child to obtain lawful permanent residence as a derivative of their parent under family-based and employment-based immigration rules, the child must remain under the age of 21. Once the child reaches age 21, they “age out” and are generally no longer eligible to obtain permanent residence through their parent.

The Child Status Protection Act was enacted in 2001 to mitigate the “aging out” of applicants for immigrant visas and green cards due to lengthy government processing times. For adjustment applicants in the numerically limited family- and employment-based preference categories, the law prescribes a complex formula for “freezing” an applicant’s age based on the length of time the applicant’s underlying immigrant visa petition was pending, and the date on which an immigrant visa became available to the applicant according to the State Department’s monthly Visa Bulletin.  In addition, CSPA requires foreign nationals to file a permanent residence application within one year of immigrant via availability.

Until February, USCIS considered a visa available for CSPA age calculation based only on the Final Action Dates listed in the Visa Bulletin. This meant that foreign nationals whose adjustment applications were submitted under the Dates for Filing chart were unable to assess whether they could benefit from age-out protections under CSPA. The February USCIS guidance rescinded that earlier policy and recognized Dates for Filing for purposes of the age calculation, which permitted many more adjustment applicants to receive CSPA protections.

By shifting from measuring the visa availability date based on the Final Action Date to the Date for Filing, the agency effectively moved up the date on which an immigrant visa is considered to be available in many cases.  This in turn results in the CSPA age calculation coming out lower, thereby expanding the number of foreign nationals protected from aging out. However, for age-out protections to attach, CSPA normally requires a foreign national to have submitted an adjustment application within one year of visa availability, unless the applicant can show extraordinary circumstances, and the agency’s February policy change moving up the visa availability date also had the unintended countervailing effect of moving up the deadline by which a foreign national needed to file their adjustment of status application to lock in that adjusted, lower age. In some cases, under the revised definition of the visa availability date, the one-year deadline to file the adjustment application would have already passed, or already be well on the way to being reached, by the time the new policy went into effect.

To address this anomaly, the policy announced yesterday clarifies that a foreign national’s inability to file their adjustment application within one year of the revised visa availability date is an extraordinary circumstance that may excuse a late adjustment filing for purposes of CSPA protections. This new policy allows the agency to exercise its discretion to accept an adjustment application and accord CSPA protections to a foreign national even if more than one year has elapsed since their priority date became current under the Dates for Filing. 

If you have questions about the new guidance, please contact your designated Fragomen professional.