If you want to opt out of the automatic conversion, you must submit a written request to the USCIS office that approved your Form I-130. [^ 28] See Section G, Sought to Acquire Requirement [7 USCIS-PM A.7(G)] for detailed information. Immediate relatives(including derivatives of widow(er)s); Family-sponsored preference principal applicants and derivative applicants; Violence Against Women Act (VAWA) self-petitioners and derivative applicants; Employment-based preference derivative applicants; Diversity Immigrant Visa (DV) derivative applicants; Form I-590, Registration for Classification as a Refugee; or, The first day of the month of when USCIS considers a visa available for filing an adjustment of status application based on your immigrant preference category, country of chargeability, and priority date. An applicant is listed as a derivative on an approved Form I-140 filed by their parents employer. Looking for U.S. government information and services? If we transfer your underlying basis, calculate your CSPA age using your age at the time your immigrant visa becomes available, minus the time the petition that forms the new basis of your adjustment of status application was pending. [9], CSPA does not apply to adjustment applications that were subject to a final determination prior to the effective date. A visa initially becomes available to the prospective applicant according to the Final Action Dates chart on March 1, 2020, which USCIS designated for use in that month. If you do not meet the sought to acquire requirement, we may use our discretion to excuse you from this requirement, if you can establish that your failure to meet this requirement was the result of extraordinary circumstances. USCIS employees should not rely on the historical versions for current laws, precedent decisions, policies, directives, guidance, and procedures. Read Shimanto's reply, I posted the format there. The resulting age is known as the applicants CSPA age.. [19], CSPA applies differently to family-sponsored and employment-based preference and DV adjustment applicants than it does to refugee, asylee, and IR adjustment applicants. For historical versions before June 11, 2021, navigate to the USCIS Policy Manual within the USCIS website at:https://archive.org, Select a date to view the historical version, An official website of the U.S. Department of Homeland Security, An official website of the United States government, Part R - Abandonment of Lawful Permanent Residence, POLICY ALERT - Age Calculation under Child Status Protection Act, POLICY ALERT - EB-5 Reform and Integrity Act of 2022, Technical Update - Adding References to the EB-5 Visa Program in Child Status Protection Act Guidance, Technical Update - Replacing the Term Alien, POLICY ALERT - Age and Sought to Acquire Requirement under Child Status Protection Act, POLICY ALERT - Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements Final Rule, Technical Update - Moving the Adjudicators Field Manual Content into the USCIS Policy Manual, Technical Update - Replacing the Term Foreign National, Technical Update - Child Status Protection Act, POLICY ALERT - Child Status Protection Act, POLICY ALERT - Adjustment of Status Policies and Procedures and 245(a) Adjustment, To protect your privacy, please do not include any personal information in your feedback. U.S. An applicant may only establish extraordinary circumstances due to ineffective assistance of counsel (the applicants legal representative or attorney) if he or she completes the following: The applicant must submit an affidavit explaining in detail the agreement that was entered into with counsel regarding the actions to be taken and what information, if any, counsel provided to the applicant regarding such actions; The applicant must demonstrate that he or she has made a good faith effort to inform counsel whose integrity or competence is being questioned of the allegations brought against him or her and that counsel has been given an opportunity to respond; and. If you were under the age of 21 at the time your parent filed Form I-589, your age is frozen as of that date and you will not age out. [^ 31] For DVs, the qualifying petition is the DV Program electronic entry form. However, CSPA does not change the requirement that you must be unmarried in order to remain eligible for classification as a child. So, both you and your brother do qualify for CSPA, you need to write a letter to NVC stating that you and your brother may qualify for CSPA status so please review the situation, Once NVC reviews the case, they will send invoice for you and your brother. [7] CSPA only covers those immigrants explicitly listed in the statute; it does not apply to any other immigrants or nonimmigrants. The CSPA age is calculated based on the new visa availability date of October 1, 2021 (not October 1, 2020), and locked in as of that date provided that the visa remains available and the applicant seeks to acquire during that 1-year period. [16], While the child must have been unmarried in order to qualify for refugee derivative status, he or she does not need to remain unmarried in order to adjust status under INA 209.[18]. See INA 204(a)(1)(D)(i)(I) and INA 204(a)(1)(D)(i)(III). A written request to transfer the underlying basis of the adjustment of status application also will meet the sought to acquire requirement, if we receive the request within 1 year of an immigrant visa becoming available in the new preference category. The letter format is on this forum. A lock ( A locked padlock ) or https:// means you've safely connected to the .gov website. Chapter 8 - Inapplicability of Bars to Adjustment, Volume 1 - General Policies and Procedures, Volume 9 - Waivers and Other Forms of Relief, Volume 11 - Travel and Identity Documents, Volume 12 - Citizenship and Naturalization, Part A - Adjustment of Status Policies and Procedures, Part F - Special Immigrant-Based (EB-4) Adjustment, Part A - Secure Identity Documents Policies and Procedures, Volume 3 - Humanitarian Protection and Parole. I suggest you gather up the relevant documents (particularly the I-130 receipt and I-130 approval notice) and get a lawyer to send a letter to the NVC that demonstrates your CSPA calculation, asserts your eligibility to stay in F2A and urges them to forward your case to the consulate for final processing. Therefore, it is always in the applicants best interest to apply for adjustment of status as soon as possible when a visa first becomes available according to the chart designated by USCIS so as to lock in the applicants CSPA age. [^ 11] See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. A lock ( A locked padlock ) or https:// means you've safely connected to the .gov website. If the applicant does not seek to acquire within 1 year of visa availability although the visa was available for a continuous 1-year period, the applicant cannot benefit from the age-out protections of the CSPA. I would like an attorney to double check the CSPA age calculation and draft the letter with appropriate language. The formula determining the length of time the petition was pending is as follows: Approval Date - Filing Date = Pending Time. You must check the. Once a Processing Complete Letter has been issued, NVC "closes" the file and places it in a queue for future use. If you were under the age of 21 at the time of your parents interview, your age is frozen as of that date and you will not age out. If a visa initially becomes available and then becomes unavailable[38] for accepting and processing an adjustment of status application before the potential adjustment applicant has filed an application, the applicants CSPA age is not locked in. If a continuous 1-year period of visa availability elapsed and the applicant did not seek to acquire during the 1-year period, the applicant cannot benefit from the age-out protections of the CSPA. * Got USCIS receipt notice on April 08, 2011. For example, the law allows unmarried children of U.S. citizens to remain immediate relatives if they are under 21 when the I-130 petition is filed. The applicant may file an untimely motion to reopen or reconsider without a filing fee if: Special rules apply in cases where an adjustment applicant would otherwise age out on or after August 6, 2002. [^ 33] For more information, see Chapter 3, Filing Instructions, Section B, Definition of Properly Filed, Subsection 4, Visa Availability Requirement [7 USCIS-PM A.3(B)(4)] and Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)]. Age at Time of Visa Availability - Pending Time = CSPA Age. For derivative refugees, an adjustment applicants CSPA age is his or her age on the date the principal applicants Form I-590 is filed. When the visa becomes available again, the applicants CSPA age is calculated based on the new visa availability date. L. 107-56 (PDF), 115 Stat. The NVC did its CSPA analysis when the priority date became current using Chart A, which was on Oct. 1, 2016. Thinking the NVC was acting on the case, the family sat back and waited for further word. However, the derivative refugee may overcome this by providing evidence establishing the parent-child relationship, including evidence of the childs age, and a reasonable explanation as to why the derivative was not included on the principals Form I-590. [46], Actions an applicant might take prior to filing an adjustment application, such as contacting an attorney or organization about initiating the process for obtaining a visa that has become available or applying for permanent residence, are not equivalent to filing an application and do not fulfill the sought to acquire requirement. [^ 45] Applicants may file the Form I-824 concurrently with the adjustment application. [^ 36] See Chapter 6, Adjudicative Review, Section C, Verify Visa Availability, Subsection 5, Visa Retrogression [7 USCIS-PM A.6(C)(5)]. Collect all the supporting documents and fill out DS-260 (include your child's name on DS-260). USCIS denied the adjustment application solely because the applicant had aged out. If you do not know which USCIS office approved your Form I-130, you may call our USCIS Contact Center. See Part M, Asylee Adjustment, Chapter 2, Eligibility Requirements, Section C, Derivative Asylee Continues to be the Spouse of Child of the Principal Asylee, Subsection 2, Derivative Asylees Ineligible for Adjustment of Status [7 USCIS-PM M.2 (C)(2)]. VAWA self-petitioners and derivatives who do not qualify for CSPA may qualify for age-out relief under VTPVA.

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