USCIS updates aging-out policy for EB-5 dependents
By Anayat Durrani
The USCIS has revised its policy for the Child Status Protection Act (CSPA) to address aging-out for applicants seeking a green card through their parent’s approved petition for a family-sponsored or employment-based visa.
If a child turns 21 and ages out during the immigration process, they are generally no longer eligible to immigrate with the parent on the parent’s petition unless they can be considered under 21 years per CSPA calculations and efforts made to “freeze” the CSPA age. The new policy allows USCIS to use the State Department Visa Bulletin ‘Dates for Filing’ chart, rather than the ‘Final Action Date’ chart to determine when a visa is available.
“USCIS’ new interpretation of the CSPA broadens the timeframe of when a visa is deemed available for CSPA purposes,” says Dennis Tristani, Tristani Law, LLC. “This is incredibly beneficial and will allow more dependent children of EB-5 investors to freeze their CSPA age under 21 and continue the green card process with their family.”
USCIS adjusts policy to prevent children from aging out
The new policy change is effective immediately and applies to pending applications. The agency said some individuals with a pending application may now have a CSPA age that is under 21 based on this change and using the Dates for Filing chart to calculate these noncitizens’ ages “provides these noncitizens with more certainty about their eligibility to adjust status.”
Tristani says the March 2023 visa bulletin is a good example of the revision. Chart B “Dates for Filing” is used to confirm when an applicant can either begin the green card application process at a U.S. Consulate abroad or file Form I-485 to Adjust Status in the U.S. He says USCIS’s new policy that determines visa availability by the dates in Chart B “are often months or years later, ahead of, the dates in Chart A.”
For example, he notes that the March 2023 visa bulletin shows the cutoff date for determining visa availability for an Indian born EB-5 applicant is June 1, 2018. But, the cutoff date in Chart B is December 8, 2019, which he says makes a difference of more than 17 months.
In practice, he says that means that if USCIS is using Chart B dates to accept Form I-485, Adjustment of Status Applications, then a family may file Form I-485 in March of 2023 and “lock in their child’s age if their I-526 petition was filed before December 8, 2019 and not June 1, 2018.”
Tristani says this is a big advantage since it “includes a much larger group of potential I-485 applicants who filed their I-526 petition between June of 2018 and December of 2019 which can now take advantage of the I-485 application process and ensure that their dependent children will receive green cards with the rest of their family.”
Locking in the age for children of EB-5 investors
Tristani says it’s important to note that Chart B can only be used to determine visa availability for CSPA purposes when USCIS confirms that it is using Chart B to determine when to accept I-485 applications, which typically USCIS makes a few days after the upcoming month’s visa bulletin is released and published on their website.
Also, once Form I-485 is filed and accepted by USCIS, he says the child’s age is frozen under 21. He says the child’s age will remain locked in and their I-485 will remain pending, even if the dates in Chart B retrogress due to movement in the visa bulletin.
“The family can also continue to enjoy the benefits of the temporary employment authorization document and advance parole, which can be obtained as part of the adjustment of status process,” says Tristani.
The agency said noncitizens can file a motion, within 30 days of the decision, to reopen their previously denied adjustment of status application with USCIS by using Form I-290B, Notice of Appeal or Motion. USCIS may, per its discretion, excuse motions filed more than 30 days after the denial, if there’s proof that the delay was reasonable and was beyond a noncitizen’s control, the agency said.