A new interpretation by the United States Citizenship and Immigration Services will allow extending the period of time in which a person is considered eligible after reaching the age of 21, which until now was automatically left out of the process.
This, taking into consideration the approved petitions of their parents for a family-sponsored or employment-based visa.
In short, if a person turns 21 and over the age of 21 during the immigration process, they are most likely no longer eligible to process with the parent at the request of the parent, unless they can be considered under 21 under the CSPA calculations and the efforts made to “freeze” the CSPA age.
The new policy allows USCIS to use the Department of State’s Visa Bulletin ‘Filing Dates’ box, rather than the ‘Final Action Date’ box, to determine when a visa is available.
Dennis Tristani of Tristani Law LLC stated that “USCIS’s new interpretation of the CSPA expands the time period in which a visa is considered to be available for CSPA purposes.”
In addition, he adds that “this is incredibly beneficial and will allow more dependent children of EB-5 investors to freeze their CSPA age below 21 and continue the green card process with their family.”
USCIS adjusts policy to prevent children from overage
As reported by the entity, the new policy change will take effect immediately and will also be applied retroactively to pending applications.
USCIS further advised that some people with a pending application may now have a CSPA age under 21 based on this change and the use of the Filing Dates table to calculate the ages of these non-citizens.
Dennis Tristani explained that the March 2023 visa bulletin is a good example of the review. The “Filing Dates” box is used to confirm when an applicant can begin the Green Card application process at a US Consulate abroad or file Form I-485 to adjust status in the US. USA
For example, it notes that the March 2023 visa bulletin shows that the cut-off date for determining visa availability for an Indian-born EB-5 applicant is June 1, 2018. But, the cut-off date in the Table B is December 8, 2019, which makes a difference of more than 17 months.
In practice, it says that means that if USCIS is using the dates in Table B to accept Form I-485, Applications for Adjustment of Status, then a family can file Form I-485 in March 2023 and “set the age of your child if the I-526 petition was filed before December 8, 2019 and not June 1, 2018.”
Tristani further said that this is a huge advantage as it “includes a much larger pool of potential I-485 applicants who filed their I-526 petition between June 2018 and December 2019 who can now take advantage of the I-485 application process. 485 and guarantee that their dependent children will receive green cards with the rest of their family.
Setting the age for children of EB-5 investors
It is important to note that Box B can only be used to determine visa availability for CSPA purposes when USCIS confirms that it is using Box B to determine when to accept I-485 applications, which USCIS typically does a few days after the next month. The visa bulletin is published and posted on their website.
Also, once USCIS files and accepts the Form I-485, it says that the age of the child is frozen below 21 years of age. “The child’s age will remain locked and their I-485 will remain pending, even if the dates in Box B regress due to movement in the visa bulletin.”
The agency also said that non-citizens 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, at its discretion, excuse motions filed more than 30 days after the denial, if there is evidence that the delay was reasonable and beyond the control of a non-citizen.
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