USCIS’s latest policy change on Child Status Protection Act (CSPA) is small but significant

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Shahrukh Khan in his film ‘Om Shanti Om’ said, “When you wish for something with all your heart, entire universe comes together to make it happen.” Rumi, the great mystic poet of the Persian language said it too, but Shahrukh makes sense for modern times just like USCIS’s latest updated guidance on Child Status Protection Act (CSPA). Although immigration in the US is stuck in Rumi’s time period (no pun intended), United States Citizenship and Immigration Services (USCIS) seems to be the Shahrukh for high skilled immigrants in the USA by bringing a small yet considerable change to Child Status Protection Act or CSPA as its commonly called.

The update came into effect on February 14, 2023, a Valentine’s Day gift from USCIS to their true love- the immigrant community. The updated USCIS guidance protects child adjustment of status applicants from ‘aging out’ at 21 years of age while their application is under process with USCIS.

This new updated guidance only helps a small number of families who have their adjustment of status under process but due to long processing times with USCIS and because their visa dates retrogressed, their kids would have other wise aged out. The State Department decides when the visa dates will move or not, or will retrogress depending on the availability of number of visas in a particular category. Right now, for Indian born nationals the wait time is over a 100 years under employment based category 2 and 3.

Since October 2015, the State Department Visa Bulletin uses two different tables to determine visa availability- the Final Action Dates and the Filing Dates. Final Action Dates table is used for granting permanent residency or the Green Card. Occasionally USCIS determines if it would consider the Filing Dates for submission of an I-1485 application, a date prior to the visa availability. What makes USCIS decide this? Their own calculation that is a highly guarded secret. However, to the families with kids closer to age 21 a change in Filing Date and Final Action Date would make a world of difference. Typically, the difference between Filing Dates and Final Action Dates is at least a year if not more. In the interim, if visa dates retrogress, as is common, the kids would fear aging out once they turn 21 and would have one of the two options: 1. Leave USA; 2. Get on a visa bandwagon, jumping hoops from F-1 to H-1 and then be stuck in the Green Card backlog much like their parents.

Anirban Das, Founder of Skilled Immigrants in America, calls this USCIS guidance update a significant good news. ” Prior to October 2015, there was only one date. Back then if your priority date was current, you file adjustment of status, and child’s age got locked in, which was a big advantage.” This changed in 2015, he further adds,” From 2015 they started with two different dates to be more efficient and to get a good idea of the inventory they have. With Filing dates, they allowed people to file for Green Card but they weren’t processing the Green Cards, only the ones whose priority dates are before the Final Action dates, got the Green Card. The idea was to minimize visa wastage. What was strange was when CSPA came out they went ahead and honored the Final Action date. It made no sense. It is very significant for somebody whose child is about to age out.” “When the dates finally start to move forward there will be a substantial gap between Final Action dates and Filing Dates of at least a year or year and a half,” he continues. This gap is something those closely monitoring visa bulletins have followed over the last 8 years, since 2015.

Sandeep Vyas of Hillsborough, New Jersey who has lived in the USA for 16 years was eagerly, almost impatiently waiting for his Green Card. Following the September 2022 visa bulletin, he filed for adjustment of status for himself, his wife, and his kids with priority date of Dec 1, 2014. While their case was under processing the visa dates retrogressed and the protection, he sought for himself and his kids was snatched from him. “I became very hopeful that finally, my son who is a freshman in college and turning 21, in two years will have a better future,” Sandeep says, “Our hopes came crashing down. I personally didn’t have the courage to let my son know about it. As parents, we started to think about what the next course of action would be. The only way seemed right was to finish our H1B tenure and then decide whether to renew it again or not. The pain of renewing our papers every three years (for the last 16 years), without clarity of the future was killing us.”

He further adds, “When all seemed dark around us, like a knight in shining armor USCIS revised the CSPA act giving a us gift of patience. At a point when nothing seemed right, as a first-generation immigrant we finally got something to hold on to forsake of our kids.”

“Now this will come as a relief to so many of the Indian Origin parents who were suffering from the pain of having their kids go through a similarly arduous journey that seems impossible by the current standards,” he rejoices. Sandeep echoes the question that is on every high skilled immigrant parent’s mind after this updated guidance from USCIS, “These kids who have only known Unites States of America as their own country, who get up every morning thinking they are US Citizens, have pledged their allegiance to the stars on the flag, where should they find themselves when the country denies adopting them as their own?”

As is common with most USCIS updates this recent updated guidance has left many including attorneys with confusion. Attorneys who had been advising high skilled immigrants to file for adjustment of status on the basis of Final Action Dates so the kids won’t age out are now confused whether USCIS will honor their guidance update even though the child’s petition was never filed as per Filing Dates simply because filing child petitions under the Filing Dates was discouraged by USCIS! Sometimes I wish our immigrant lives was as simple as a Shahrukh Khan movie, at least it would ensure a happily ever after.

Neha Mahajan is a long-time high-skilled immigration reform activist and currently Business Development and Outreach Manager at CHUGH, LLP.
Disclaimer: The views expressed in this article are the author’s own and do not reflect that of CHUGH, LLP.

(The views expressed in this article are the author’s own and do not reflect that of Parikh Worldwide Media, News India Times, Desi Talk.)