March 22, 2023

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The United States Citizenship and Immigration Services (USCIS) recently updated its policy manual. Now, the manual includes a new method for calculating the age of a non-citizen in cases when an immigrant visa number becomes available under the Child Status Protection Act (CSPA). This change is good news for many Indians waiting in green card queues. For example, it will benefit the children of Indians aging out of the green card petition their parents filed for them when they turn 21.

This policy change significantly affects what happens when children age out. In such cases, they can retain their parent’s priority date instead of starting the green card filing process anew. For example, only children younger than 21 can acquire lawful permanent resident status based on an approved employment-based visa, green card, or family-sponsored visa petition by their parents. Otherwise, children who turn 21 during the immigration process have aged out and become ineligible to immigrate through the parent’s petition.

The U.S. Congress’s Child Status Protection Act (CSPA) now protects children from aging out and losing this eligibility. It does this by giving a method for calculating a child’s age while considering when an immigrant visa number becomes available. They use this calculated age as the child’s “CSPA age” to determine whether the child meets the definition of a child for immigration. As a result, it allows individuals to maintain the classification of children after turning 21. However, the Act still requires the individual to remain unmarried to maintain eligibility.

The United States Department of State Bulletin determines when visa numbers become available. This bulletin has two charts: one with the filing dates and the other with the final action date. Before this change in the CSPA guidance, the USCIS used only the final action date chart when considering available visas for CSPA age calculations. This method applied even if non-citizens could use an earlier date from the filing chart when applying for an adjustment of status.

However, the new guidance will allow the USCIS to use the dates from the filing chart when calculating these non-citizens’ ages. As such, these non-citizens would gain more certainty concerning their eligibility to adjust their status.

Non-citizens eligible to adjust their status through this policy change could also apply for travel and work authorizations. However, they must have a pending adjustment of status applicants. In most cases, they will not lose previously issued travel or work authorizations.

Non-citizens that had their adjustment of status application denied in the past may file a motion to reopen it. They can do so by using a Notice of Appeal or Motion (Form I-290B). This policy change takes effect immediately. As such, it would instantly apply to pending status adjustment applications. In addition, some non-citizens with a pending application could have a CSPA age under 21 due to this policy change.

Employers should watch for changes in the employment authorization process due to this policy change. Regardless of these changes, employers must still complete the employment eligibility verification (Form I-9) process for all new hires. The best way to ensure they complete this process correctly is by investing in an electronic I-9 management system. This system guides employers through the process step-by-step and safely and securely stores the forms and documentation.

When it comes to your employees, automation makes eligibility verification quick and simple. Ensure compliance today with I-9 Compliance.

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