OPINION-US VISA | IMMIGRATION CORNER- Michael J. Gurfinkel – USCIS’s new CSPA ‘age calculation’ policy does not apply at the embassy
Dear Attorney Gurfinkel:
My father was petitioned by his brother in the F-4 category (brother/sister of a US citizen). I was included under my uncle’s petition because I was under 21 years of age when it was filed. The NVC eventually sent notices that included my name, and so we paid all the fees, submitted all the forms and I did my medicals in connection with my interview at the US embassy.
To my shock and surprise, at the interview, the consul said I had “aged out” and did not qualify for benefits under the Child Status Protection Act (CSPA), as my age was calculated to be over 21 when the priority date was current.
I read that recently the USCIS changed its policy for calculating a child’s age in that we may use the “Dates for Filing” chart (Chart B) instead of the Final Action Dates chart (Chart A). When I calculated my age using the Dates for Filing chart, my age is under 21. Would I be able to seek reconsideration at the embassy so I can be issued a visa under the CSPA?
Very truly yours, GS
….
Memento Maxima Digital Marketing.
Dear GS:
The bottom line is that while the US Citizenship and Immigration Services (USCIS) will let children calculate their age by sometimes using the Dates for Filing chart (Chart B), but the State Department and embassy still only use the Final Action Dates chart. If a child is outside the US being processed for an immigrant visa (as opposed to within the US, filing for adjustment of status), they must calculate their age using the Final Action Dates chart.
By way of background, on Feb, 14, 2023, USCIS announced a change in its policy on how (or when) to calculate a child’s age under the CSPA. Although the mathematical computation is confusing and complex, the age of the child is supposed to be calculated based on when a visa is considered “available.” According to the USCIS: “The date USCIS considers a visa available for accepting and processing an adjustment of status application according to the USCIS website and the Visa Bulletin is also the date USCIS considers a visa available for CSPA purposes if the petition is already approved.”
In other words, each month when the Visa Bulletin is published, USCIS determines which chart it will rely on to determine when a visa is available, either Dates For Filing or the Final Action Dates chart. If, for a particular month, USCIS designates the Dates For Filing chart, the family may calculate the child’s age using that chart, which is far more favorable, as the priority dates are available much sooner. Therefore, a child within the US may calculate his or her age (and file for adjustment of status) using the Dates for Filing chart.
The situation is different for a child processing their immigrant visa at the embassy. The State Department will still only use the Final Action Dates chart. As stated in the Foreign Affairs Manual (FAM): “The “CSPA age” is determined on the date that the visa became available (i.e., the date on which the priority date became current in the Final Action Dates chart in the Visa Bulletin or the date on which the petition was approved, whichever came later).”
In other words, USCIS’s new policy of sometimes using the Dates for Filing chart does not apply at the US embassy, and the Embassy will calculate the child’s age only based on visa availability on the Final Action Dates chart. In fact, right after USCIS announced its policy change in calculating the child’s age, I emailed the State Department (as did many other attorneys), asking if they would follow suit and compute a child’s age using the Dates for Filing chart. Unfortunately, the answer was “no.”
If anyone has issues about eligibility or the applicability of the CSPA, I would strongly recommend you consult with an attorney who can evaluate the case, calculate the child’s age and if erroneously refused, seek reconsideration. Perhaps the consul may have miscalculated the child’s age, or maybe the visa was available earlier and had retrogressed, but the child’s age would have been under 21 before retrogression. These are some of the issues an attorney could evaluate.
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