On February 14th, U.S. Citizenship and Immigration Services (USCIS) issued policy guidance that updates the way in which the authorized age of a kid who has utilized for Adjustment of Standing (AOS) because the beneficiary of an underlying petition in a family-based (FB) or employment-based (EB) choice class is calculated underneath the Child Status Protection Act (CSPA). In doing so, it revised its interpretation of when a inexperienced card “turns into obtainable” to the kid underneath the CSPA by treating both the Visa Bulletin’s Remaining Motion Dates or its Dates for Submitting as controlling, relying on which of those units of closing dates USCIS used to simply accept the kid’s AOS software for submitting.
Beforehand, USCIS handled Remaining Motion Dates, completely, as controlling to find out when a inexperienced card “turns into obtainable,” even when the kid’s AOS software was accepted for submitting primarily based on Dates for Submitting. The update is a welcome change that will increase the variety of kids who’re protected against “aging-out” of eligibility for a inexperienced card because of turning 21 years outdated earlier than USCIS, marred by processing backlogs, is ready to adjudicate their AOS purposes, although they had been underneath 21 years outdated on the time their purposes had been filed.
However I’d additionally urge USCIS to make one other, associated replace by issuing coverage steerage that likewise specifies that the set of closing dates that controls whether or not a inexperienced card is “instantly obtainable” to find out if a switch of the underlying foundation of a pending AOS software may be requested in a given month is identical set of closing dates that USCIS is utilizing to find out if it can settle for AOS purposes for submitting that month.
How AOS Purposes Work Underneath the CSPA
Underneath the CSPA, the authorized age of a kid who has utilized for AOS because the principal or by-product beneficiary of an underlying petition in a FB or EB choice class is calculated by subtracting the pending time of the underlying petition from the kid’s precise age on the date {that a} inexperienced card within the petition’s choice class “turns into obtainable” to them. The date {that a} inexperienced card within the underlying petition’s choice class “turns into obtainable” to the kid is both the date that the petition is permitted or the primary day of the month wherein the beneficiary’s precedence date is “present” based on that month’s Visa Bulletin, whichever is later. The precedence date is “present” in a given month if it falls earlier than the closing date for the mix of the underlying petition’s choice class and the beneficiary’s nation of chargeability.
Since September 2015, two units of closing dates have been posted to the Visa Bulletin every month for the FB and EB choice classes: (1) Dates for Submitting and (2) Remaining Motion Dates. In a given month, USCIS might consult with both set of closing dates to establish whether or not a precedence date is present to find out if it can settle for an AOS software for submitting that month. However earlier than the February 14th replace to its coverage steerage, USCIS deemed a precedence date present in calculating a baby’s age underneath the CSPA provided that it fell earlier than the related Remaining Motion Date, which isn’t later than the corresponding Date for Submitting. This meant that, if, in a month that USCIS was accepting AOS purposes for submitting primarily based on Dates for Submitting, a baby filed their software because the beneficiary of an underlying petition in a FB or EB choice class, the kid was not protected by the CSPA from getting older out in the course of the pendency of the appliance until or till the precedence date was additionally present based on Remaining Motion Dates. Due to the chance that this may not happen for an extended time period, the kid continued to face the prospect of getting older out and, in flip, of being separated from their households, regardless of having well timed filed their AOS software properly earlier than they turned 21 years outdated. Fortunately, USCIS’ up to date coverage steerage resolves this difficulty.
Continued Suggestions for USCIS
However USCIS can additional mitigate convolution and discord throughout its insurance policies by extending its up to date interpretation of when a inexperienced card “turns into obtainable” underneath the CSPA to when a inexperienced card turns into “instantly obtainable” underneath its transfer-of-underlying-basis coverage. A switch of underlying foundation has the impact of switching the authorized foundation of a pending AOS software from one petition to a different. Though USCIS might consult with both Dates for Submitting or Remaining Motion Dates in a given month to find out if it can settle for an AOS software for submitting that month, it should refer completely to the Remaining Motion Dates to find out if it might approve an software that month. Due to this fact, a switch of underlying foundation might facilitate the issuance of a inexperienced card to an AOS applicant extra shortly, for instance, if they’re the beneficiary of two separate petitions in a FB or EB choice class, however the precedence date turns into present based on Remaining Motion Dates sooner within the choice class of the petition that doesn’t presently function the underlying foundation of their pending software. Underneath present USCIS coverage, a request to switch underlying foundation could also be made provided that a inexperienced card is “instantly obtainable” within the choice class of the petition to which the switch is sought. However the steerage doesn’t specify if this implies the precedence date should be present based on Dates for Submitting or Remaining Motion Dates. Largely, practitioners appear to grasp the coverage to imply the latter, however it will be useful if USCIS issued clarifying steerage.
USCIS may do that by updating its current steerage to explicitly state that the set of closing dates controlling the flexibility to request a switch of underlying foundation in a given month is identical set of closing dates controlling the flexibility to file an AOS software that month. It’s true that since, as famous above, AOS purposes can’t be permitted until a precedence date is present based on Remaining Motion Dates, it may, in some situations, be untimely to request a switch of underlying foundation solely primarily based on the precedence date being present based on Dates for Submitting. However this needs to be a judgment reserved for the applicant and their legal professional. Furthermore, the actual fact stays that the identical processing backlogs that prompted the enactment of the CSPA additionally have an effect on USCIS’ skill to well timed adjudicate requests to switch underlying foundation. Due to this fact, the choice to file these requests primarily based on Dates for Submitting in a given month, assuming USCIS can be utilizing Dates for Submitting to simply accept AOS purposes for submitting that month, can improve the chance of an in any other case absolutely processed software being permitted in a well timed method as soon as the precedence date within the new choice class finally turns into present based on Remaining Motion Dates. This, in flip, would keep away from the necessity to anticipate the precedence date to develop into present based on Remaining Motion Dates to make the transfer-of-underlying-basis request within the first place and will scale back the danger of a subsequent retrogression in Remaining Motion Dates such that the precedence date, earlier than USCIS is ready to adjudicate the request and approve the AOS software, reverts to not being present.
Accordingly, USCIS ought to use its newest replace to its CSPA steerage as a chance to difficulty an analogous replace to its steerage on transfer-of-underlying-basis requests and thereby promote larger consistency throughout its insurance policies. Doing so would assist serve the objectives said in USCIS’ FYs 2023-2026 Strategic Plan of making certain that immigration insurance policies assist a robust immigration system with integrity, investing in a workforce that drives high-quality organizational efficiency, and selling efficient and environment friendly organizational administration and stewardship.