By Marta Lillo
The U.S. Citizenship and Immigration Services (USCIS) clarified on Aug. 24 that a February policy change involving calculating ages for children seeking permanent resident status could be used as an "extraordinary circumstance" to excuse some failed applications, particularly I-485 petitions for adjustment of status that were unsuccessful because of the update.
In February, the agency issued an update to its USCIS Policy Manual regarding when an immigrant visa number “becomes available” for calculating the age of children in a green card application in certain situations under the Child Status Protection Act (CSPA).
How the policy update impacts children of EB-5 investors
The critical change was that USCIS would use the "Dates for Filing" and "Final Action Date" charts to enhance eligibility certainty.
"Until recently, they let the children file under the more favorable chart (Dates for Filing) but then adjudicated based on the less favorable chart (Final Action Date). The new Policy Guidance (Feb. 14) has corrected this and says if they were qualified under CSPA at the time of filing the final stage, then they remain qualified at the time of adjudication," says Lynne Feldman, attorney at Feldman & Feldman.
However, six months after its implementation, the USCIS had to clarify some of the February update applications, especially for petitions for visa adjudications received before and after Aug. 24. that could not meet the CSPA “sought to acquire” requirement because of the policy change.
“The February 2023 policy change was welcome news, but it also left certain questions unanswered, including how non-citizens who aged out under the old policy could be eligible for relief under the less restrictive CSPA interpretation,” says Dennis Tristani, immigration lawyer and managing attorney of Tristani Law, LLC.
The agency said on Aug. 24 that it would consider the Feb. 14 update a valid extraordinary circumstance to excuse these failed petitions “so long as the delay in filing the I-485 application is reasonable under the circumstances,” Tristani adds.
Specific exemptions for EB-5 CSPA age calculation
The USCIS acknowledged that the Feb. 14 policy change can excuse petitions that did not calculate the child's CSPA age under the policy before that date, or in the case that the child's CSPA age was calculated as over 21 years prior to the update but is now eligible.
In addition, the agency clarified that any application of adjustment of status filed before Feb. 14 within one year of a visa becoming available meets the requirement under the new policy.
Before the February update, children needed to be under 21 to obtain lawful permanent resident status in the U.S. based on their parents' approved visa application. Thus, the policy change "protects older children whose parents started the EB-5 process by filing an I-526 before their 21st birthday. The number of months that the I-526 is pending is added to the date of filing, and they may still qualify as children beyond their 21st birthday (they must be unmarried) if they ‘seek to acquire’ permanent residency within one year of the Priority Date being current," Feldman says.
EB-5 attorneys advise caution
For Tristani, the clarification would be seen as a “sufficient reason to allow USCIS to accept untimely filed motions to reopen previously denied I-485 applications by arguing that because USCIS’ policy change is now considered an extraordinary circumstance, USCIS should accept an untimely motion to reopen because the filing delay was beyond the applicants control.”
Meanwhile, according to Joseph Barnett, an immigration attorney and partner at Wolfsdorf Rosenthal LLP, the August announcement provides a unique opportunity for aged out children in the U.S. to obtain green cards based on this updated interpretation of the CSPA.
However, Barnett cautions that "it appears this 'extraordinary circumstance' will not last long, and those who believe they may benefit should contact an experienced immigration attorney as soon as possible to be eligible."
Feldman underlines that the February update and the August clarification would still require necessary acknowledgment by the U.S. Department of State for it to fully benefit visa applicants. Until the DOS’ Foreign Affairs Manual has been updated, it’s uncertain if children applying from abroad through the consular process can benefit from the aging out protection.
“It is only a USCIS announcement, and I understand the Department of State (DOS) is not yet recognizing it,” she explains. “For cases processing at the (U.S.) consulate, DOS is only recognizing the slower Final Action Date chart,” she adds.