The updated rules on Child Status Protection Act (CSPA) age calculation for EB5 dependent children now consider both the Dates of Filing and Final Action Dates for determining protection for aging out as a primary immigrant’s dependent. The updated rules on Child Status Protection Act (CSPA) age calculation took effect on February 14, 2023 after the U.S. Citizenship and Immigration Services (USCIS) released a policy alert and allow more dependent children to qualify for immigrant visas. Dependent children should be unmarried and under 21 years of age to qualify as derivative beneficiaries of primary immigrant applicants.
CSPA Age calculation for EB-5 dependent children considers the length of time that the EB 5 immigrant petition was pending. The U.S. Citizenship and Immigration Services (USCIS) uses either the Dates of Filing or Final Action Dates from the Visa Bulletin to determine a child’s age at the time when an EB5 Visa becomes available given the revised rules. USCIS only used the Final Action Dates chart for determining the CSPA Age under the previous Child Status Protection Act guidelines. The Child Status Protection Act prevents eligible dependent children from aging out due to the lengthy processing times of immigrant petitions.
What are the Updated Rules on Calculating the Child Status Protection Act (CSPA) Age for EB5 Dependent Children?
The rules on calculating the Child Status Protection Act (CSPA) age were updated to allow more dependent children, including EB5 dependent children, to be protected from aging out during the U.S. immigration process. The rules on calculating the Child Status Protection Act (CSPA) age were revised on February 14, 2023 wherein the U.S. Citizenship and Immigration Services (USCIS) released a policy alert detailing the new considerations for determining when an immigrant visa “becomes available” for calculating the CSPA age. The update aims to solve any conflicts regarding the use of the Visa Bulletin dates issued by the Department of State (DOS) to calculate a dependent child’s CSPA age.
These are the updated guidelines for calculating the CSPA age for EB-5 dependent children according to the latest U.S. Citizenship and Immigration Services (USCIS) policy alert.
- The Dates of Filing chart will be used to calculate the CSPA age if USCIS uses the Dates of Filing chart for the adjustment of status (AOS) application and USCIS determined that there are more immigrant visas available for a fiscal year than there are known applicants for the EB 5 Visa category.
- The Final Action Dates chart will be used to calculate the CSPA age if USCIS announced that the dependent must use the Final Action Dates chart for the adjustment of status (AOS) application.
An EB 5 dependent child’s CSPA age will be fixed on the first of the month following the filing of their application for an adjustment of status according to the USCIS AOS Acceptance Charts. The date for the underlying EB-5 immigrant petition must have passed the priority date as displayed on the USCIS AOS Acceptance Charts for the child to submit his/her own adjustment of status application. USCIS chooses either the Final Action Date chart OR the Date for Filing chart from the Visa Bulletin for the monthly AOS Acceptance Charts based on the actual supply of EB5 Immigrant Visas.
What is the Child Status Protection Act (CSPA)?
The Child Status Protection Act is the rule that USCIS applies to determine whether a child is a qualified dependent of a primary immigrant applicant. The Child Status Protection Act prevents eligible dependent children from aging out due to the lengthy processing times of immigrant petitions.
A dependent (derivative) child is a person who is under 21 years old and unmarried according to the Immigration and Nationality Act (INA). Generally, a child who turns 21 during the immigration process “ages out” and becomes ineligible to be a dependent (derivative) on their parent’s immigrant visa petition.
Why was the Child Status Protection Act (CSPA) Created?
The CSPA was enacted into law to serve as a method of calculating a dependent child’s age for immigration purposes while taking into account the prolonged processing times that lead to children aging out. The CSPA “freezes” a derivative child’s age at the time an immigration petition is submitted on their behalf. The resulting CSPA Age makes it possible for derivative children to continue to be eligible for immigration benefits even if they turn 21 while their case is still pending.
What were the Previous Rules for CSPA Age Calculation?
The CSPA Age calculation was related to a chart that was published in the Department of State (DOS) Visa Bulletin between the law’s passage in 2002 and October 2015. DOS started issuing 2 charts in October 2015 in the Visa Bulletin. The “Dates for Filing” chart indicates the earliest dates when applicants are able to begin their immigration process. The “Final Action Dates” chart determines when immigrant visas can be issued based on the applicant’s country of birth and priority date. USCIS only used the Final Action Dates chart for determining the CSPA Age under the previous Child Status Protection Act guidelines released in May 2018.
USCIS assigns one of the 2 charts in the DOS Visa Bulletin as the reference point for noncitizens to use when deciding when to submit an application for adjustment of status. An applicant must have a visa that is “immediately available” to submit an application for adjustment of status to USCIS. The same applicant for adjustment of status can have a visa “immediately available” for purposes of filing the AOS application but the visa may not have “become available” for the CSPA computation under the old guidelines. The fee and application for adjustment of status would need to be submitted by applicants who filed using the Dates for Filing table regardless of whether they would benefit from the CSPA.
How is the CSPA Age Calculated for EB5 Dependent Children Using the New Rule?
CSPA Age calculation rules are different for EB 5 dependent children than for immediate relatives, refugee, and asylee applicants. The formula for CSPA Age for family-sponsored and employment-based immigrant applicants is used for determining whether an EB5 Visa dependent child is covered by the Child Status Protection Act.
CSPA Age calculation for EB 5 derivative children considers the length of time that the EB-5 immigrant petition was pending. The EB-5 child’s age at the time an EB 5 Visa becomes available to them (age at time of visa availability) is subtracted from the amount of time the underlying immigrant petition on which the dependent child is seeking to adjust status was pending (pending time). USCIS uses either the Dates of Filing or Final Action Dates from the DOS Visa Bulletin to determine a child’s age at the time when an EB 5 Visa becomes available.
Here is the formula used to calculate the CSPA age for EB-5.
Age at the time of EB-5 Visa availability – Pending time = EB5 CSPA Age
An EB5 dependent child who is 21 years and 6 months old at the time USCIS determines an EB5 Visa is available with an underlying immigrant petition that has been pending for 8 months will have a CSPA Age calculation as below using the given formula.
21 years and 6 months – 8 months = 20 years and 10 months
The EB 5 Visa derivative child in this case has a CSPA age under 21 and remains an eligible dependent.
What is the Rule for Calculating Pending Time for EB5 Petitions?
Pending time for employment-based and family-sponsored petitions is calculated using the number of days between the petition was properly filed and the approval date for the petition.
Below is the formula for calculating Pending Time for EB 5 Immigrant Visa petitions.
Approval date – Filing date = EB5 Petition Pending Time
An EB5 petition filed on behalf of the derivative child on February 1, 2022 and approved on August 1, 2022 will have the pending time calculated as follows.
August 1, 2022 – February 1, 2022 = 6 months
Pending time does not involve consular returns but considers administrative reviews such as motions and appeals.
How to Qualify for the Child Status Protection Act?
The following eligibility requirements must be met to qualify as a dependent child under the Child Status Protection Act.
- The dependent child must have a qualifying underlying immigrant petition or an AOS application filed on or before the CSPA effectivity date which is August 6, 2022. Proper filing for an immigrant visa is done by submitting Form DS-260 (Immigrant Visa Electronic Application) to DOS. Proper filing for AOS is done by submitting Form I-485 (Application to Register Permanent Residence or Adjust Status) to USCIS.
- The dependent child’s CSPA age must be under 21 years old.
- The dependent child must remain unmarried.
- The dependent child must have sought to acquire lawful permanent residence (LPR) within 1 year of visa availability, absent extraordinary circumstances. Examples of extraordinary circumstances considered are the following.
- Serious illness or physical or mental disability of the dependent within the 1-year period.
- Legal disability, such as the dependent suffering from mental impairment within the 1-year period.
- Situations where a member of the dependent’s immediate family or their legal representative resulted in death, a serious illness, or incapacity.
- Situations in which USCIS rejected a timely adjustment application as improperly filed and returned the application to the dependent for revisions when the error was fixed and the application was re-filed within a reasonable time frame after.
- Legal counsel provides ineffective assistance even when specific conditions are met.
Commonplace situations like money problems, minor health issues, and situations the applicant can control, such as when to seek legal assistance or when to start putting together the application package, are not regarded as extraordinary. Additionally, the fact that a person is or was a child is a characteristic shared by all individuals seeking protection under the CSPA and does not qualify as extraordinary circumstances.
Does the Child Status Protection Act Only Apply to EB5 Dependent Children Adjusting Status in the US?
No, The Child Status Protection Act (CSPA) “applies to both noncitizens abroad who are applying for an immigrant visa through the Department of State (DOS) and noncitizens physically present in the United States” according to Volume 7 of the USCIS Policy Manual: Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 7, Child Status Protection Act, Section B, Child Status Protection Act Applicability. However, DOS has not released any confirmation yet whether the Date of Filing chart will be used for CSPA Age calculation as per the new rules.
When do the New Child Status Protection Act Guidelines Take Effect?
The new CSPA guidelines took effect on February 14, 2023 and supersede all related previous rules on the matter. CSPA can still apply for a preference applicant who did not have a pending adjustment application on August 6, 2002, and who did not timely seek to acquire. A preference applicant whose visa became available on or after August 7, 2001, who did not seek to acquire within 1 year of such visa availability but who would have been eligible for CSPA coverage had he/she applied, but for the old policy guidance regarding the CSPA effective date, can still apply for AOS.
Additionally, noncitizens can file Form I-290B (Notice of Appeal or Motion) to request that USCIS reconsider an adjustment of status application that had previously been denied. In general, noncitizens must submit motions to reopen within 30 days of the ruling. USCIS may, at its discretion, excuse the motions filed past the 30-day period if the noncitizen is able to show that the delay was reasonable and out of the noncitizen’s control.
Getting a USA EB5 Immigrant Investor Visa
The USA EB-5 Immigrant Investor Visa is a path toward permanent residence for investors, their spouses, and unmarried children under 21. The US EB 5 Visa enables you to live, work, and study permanently in the United States with your family through investment and job creation.
The EB5 Program underwent significant changes in March 2022 with the passing of the Reform and Integrity Act (RIA) that allowed for priority processing and reserved visas for investors in Targeted Employment Areas (TEAs). Targeted Employment Area (TEA) investments located in rural areas or high-unemployment regions are particularly advantageous for immigrant investors facing EB5 Visa backlogs such as those from China and India. The new rules on CSPA Age calculation are additional benefits to foreign investors by enabling their qualified dependent children to remain eligible for an EB-5 Visa amidst lengthy EB-5 petition processing times.
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