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IMMIGRATION FEBRUARY 02, 2024 | The Indian Eye 40
CSPA Disharmony: USCIS Allows Child’s Age to be
Protected under the Date for Fling while DOS Allows
Child’s Age to be Protected under the Final Action Date
BY CYRUS D. MEHTA nent residency can be granted. “After the publication of is determined on the date that derivative Vivek to pay the fee
The Filing Date, if the USCIS the May 2018 guidance, the the visa, or in the case of de- and complete the rest of the
n February 14, 2023, so determines, allows for the same applicant for adjustment rivative beneficiaries, the prin- processing such as filing the
the USCIS recog- early submission of an I-485 of status could have a visa “im- cipal applicant’s visa became DS 260 application. On June
Onized that the age of application prior to the date mediately available” for pur- available (i.e., the date on 1, 2020, Vivek was already 22
the child gets protected under when the green card actually poses of filing the application which the priority date became years. However, the I-130 peti-
the Child Status Protection become available. but not have a visa “become current in the Application tion that was filed on March 2,
Act when the Date for Filing Prior to February 14, available” for purposes of Final Action Dates and the 2009 took one year and 1 day
(DFF) in the Department of 2023, the USCIS maintained CSPA calculation. Applicants petition was approved, which- to to get approved on March
State (“DOS” or “State De- that the FAD protected the who filed based on the Dates ever came later) (emphasis 3, 2010. Under INA 203(h)(1)
partment”) Visa Bulletin be- age of the child and not the for Filing chart would have to added)”. Thus, an applicant (A) the CSPA age is calculated
comes current. DFF. Using the DFF to pro- pay the fee and file the appli- outside the U.S. who pays an based on the age of the child
Since October 2015, the tect the age of the child who is cation for adjustment of status immigrant visa (IV) fee may when the visa becomes avail-
State Department Visa Bulle- nearing the age of 21 is clearly without knowing whether the satisfy the “sought to acquire” able reduced by the number
tin two different charts to de- more advantageous – the date CSPA would benefit them. requirement, but only based of days during which the I-130
termine visa availability – the becomes available sooner than To address this issue, USCIS on the FAD becoming current. petition was pending. So even
Final Action Dates (FAD) the FAD – but USCIS policy has updated its policies, and This uneven policy makes though Vivek’s biological age
chart and the Dates for Fil- erroneously maintained since now considers a visa available little sense, and the DOS on June 1, 2020 was 22, his
ing (DFF) chart. The DFF in September 2018 that only the to calculate CSPA age at the should promulgate its own CSPA age was under 21. By
the Visa Bulletin potentially FAD could protect the age same time USCIS considers guidance in accordance with seeking to acquire permanent
allows for the early filing of of the child. The USCIS on a visa immediately available USCIS’s policy to ensure that residency within one year of
I-485 adjustment of status ap- February 14, 2023 at long last for accepting and processing the DFF can also be used to June 1, 2020, Vivek’s CSPA
plications if eligible applicants agreed to use the DFF to pro- the adjustment of status ap- protect the age of a child who age got permanently locked in
are in the United States. The tect the age of the child, and plication. This update resolves processes for a visa overseas. under the DFF.
FAD is the date when perma- acknowledged this: any apparent contradiction This results in an odd Nikki paid the NVC fee
between different dates in anomaly. A child who is seek- on December 1, 2020 but took
the visa bulletin and the ing to immigrate through con- her time with the completion
statutory text regarding sular processing in the foreign of the DS 160 applications,
when a visa is “available.” country may not be able to which were submitted some-
Even if the child’s take advantage of the CSPA time in the month of July 2021.
age is protected when the under the DFF while a child Vivek’s age is protected un-
DFF becomes current, who is seeking to adjust sta- der the DFF on June 1, 2020,
the applicant must have tus while in the US can have which became current well be-
sought to acquire perma- the age protected under the fore the FAD became current.
nent resident status with- DFF. Take the example of an He also sought to acquire law-
in one year INA 203(h) Indian born beneficiary of a ful permanent resident status
(1)(A). According to the Family-Based Third Prefer- by paying the NVC fee within
USCIS Policy Manual ence Petition, which applies to one year of June 1, 2020 along
this could include filing married sons and daughters of with his mother, Nikki, even
a Form I-485, Form DS US citizens. The I-130 petition though they filed their DS 260
260, paying IV fee, I-864 was filed by the US citizen par- applications after a year from
fee, I-824 or requesting ent on behalf of the married the DFF becoming current.
transfer of underlying ba- daughter, Nikki, on March 2, If Vivek is seeking to process
sis of an I-485. 2009. The FAD on this I-130 the case through consular pro-
Unfortunately, US- petition became current un- cessing at the US Consulate
CIS’s policy of using the der the State Department Visa in Mumbai, he cannot do so
DFF to protect a child’s Bulletin on January 1, 2024 as the State Department only
m of age seems only to per- and Nikki has been scheduled recognizes the FAD to protect
CYRUS D. MEHTA & PARTNERS PLLC tain to individuals who for an immigrant visa interview the child under the CSPA. But
date on February 1, 2024 at the if Vivek is in the US in a non-
apply for adjustment of
status within the United US Consulate in Mumbai. But immigrant status such as F-1
States. The Department the daughter’s son, Vivek, who he will luck out. Once Nikki
of State (DOS) has yet to was born on June 1, 1998 has is issued the immigrant visa in
issue any corresponding already aged out and cannot Mumbai, she can get admitted
guidance or update the get protected under the FAD in the US as a permanent res-
Foreign Affairs Manu- since he is already 26. ident. Vivek can subsequent-
al (FAM) in accordance On the other hand, the ly file an I-485 application
with USCIS’s new policy. DFF on this petition became in the US while in F-1 status
2 6th Floor The FAM still states that current on June 1, 2020. The as a follow to join derivative.
an applicant’s “CSPA age’ NVC notified Nikki and her Vivek can also argue that he
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