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P. 48
IMMIGRATION SEPTEMBER 22, 2023 | The Indian Eye 48
USCIS Updates Policy Guidance
on CSPA ‘Sought to Acquire’
Requirement After Using Filing Date to
Protect the Age of the Child
BY CYRUS D. MEHTA AND position that only the Final in USCIS policy to allow the of a visa becoming available lated to be over 21 years old.
Action Date (FAD) protects DFF to protect children’s based on the Final Action If these noncitizens apply to
KAITLYN BOX*
a child’s age, not the Date ages under CSPA rather Dates chart under the policy adjust their status under the
for Filing (DFF). than the FAD. In its Febru- guidance that was in effect new policy issued on Febru-
s detailed in a prior This position resulted in ary 2023 guidance, USCIS when they applied”. The up- ary 14, USCIS said, they may
blog, USCIS issued
Aupdated guidance on children aging out before the finally adopted this recom- dated guidance: not be able to meet the one-
Explains that USCIS year “sought to acquire” re-
February 14, 2023 on when FAD became current, and mendation, acknowledging considers the February 14 quirement.
their I-485 applications get-
that “the same applicant for
an immigrant visa number ting denied, although they adjustment of status could policy change to be an ex- “However, noncitizens
“becomes available” for had been permitted to ap- have a visa ‘immediately traordinary circumstance who do not meet this re-
the purpose of calculating a ply for adjustment of status available’ for purposes of that may excuse an appli- quirement may still benefit
noncitizen’s age under the using the DFF. In numerous filing the application but not cant’s failure to meet the from the CSPA if they can
Child Status Protection Act previous blogs (see here, have a visa “become avail- “sought to acquire” require- establish that their failure to
(CSPA). Prior to February here, and here), Cyrus Me- able” for purposes of CSPA ment; meet the requirement was
2023, USCIS had taken the
hta advocated for a change calculation”, and stating that Clarifies that the agency the result of extraordinary
“USCIS has updated its may excuse an applicant’s circumstances,” USCIS not-
policies, and now con- failure to meet the require- ed.
siders a visa available to ment if they did not apply
calculate CSPA age at to adjust status because they Although it is clear that
the same time USCIS could not calculate their
considers a visa imme- CSPA age under the prior individuals who were
diately available for ac- policy or their CSPA age unable to apply for ad-
cepting and processing would have been calculated
the adjustment of status as over 21, but they are now justment of status with-
application”. eligible for CSPA age-out in one year of the DFF
Regardless of protection under the new
whether the FAD or policy; and becoming current can
DFF is used for CSPA Clarifies that the agency now claim an exception
purposes, however, INA considers applicants to have
§ 203(h)(1)(A) makes met the requirement if their if the delay in filing was
clear that a child’s age application to adjust their the result extraordinary
is locked “only if the status was pending on Feb-
[child] has sought to ruary 14 and they applied to circumstances, this
acquire the status of an adjust status within one year updated guidance still
alien lawfully admitted of a visa becoming available
for permanent residen- based on the Final Action leaves some questions
cy within one year of Dates chart under the policy unanswered.
m of such availability”. In up- guidance that was in effect
CYRUS D. MEHTA & PARTNERS PLLC dated guidance issued when they applied.
on August 24, 2023, USCIS further explains USCIS’s policy of using
USCIS clarified that it that under the policy guid- the DFF to protect a child’s
considers “applicants ance in effect before Febru- age seems only to pertain to
to have met the sought ary 14, 2023, some nonciti- individuals who apply for ad-
to acquire requirement zens may not have applied to justment of status within the
if their application to adjust status because a visa United States. The Depart-
adjust their status was was not available to calculate ment of State (DOS) has yet
pending on Feb. 14 and their CSPA age under the to issue any corresponding
they applied to adjust prior policy or their CSPA guidance or update the For-
2 6th Floor
their status within 1 year age would have been calcu- eign Affairs Manual (FAM)
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