Article: CSPA Vis-À-Vis USCIS Adjustment Chart
A huge development in The Child Status Protection Act (CSPA) is USCIS’s re-interpretation of the date on which a child’s priority date is reached for freezing age before turning 21 and he/she then no longer being able to immigrate as a child. USCIS announced a policy on February 14, 2023 that it would henceforth use the “dates for filing” chart of the monthly visa bulletin to finally fix the child’s age. Prior policy had been to use the “final action date” to determine whether the child was under the age of 21. In the past, a child would be able to file an I-485 under “dates for filing”, but if he/she turned 21 before the “final action date” opened, the case would be denied. Although there is no adjustment of status in cases being consular processed, the same rule should now apply for cases being interviewed overseas as the Attorney General (including DHS and its USCIS component) and not the Secretary of State determines the law in the field of immigration.
In determining when an age is “frozen”, the applicant must read two charts, the Department of State visa bulletin’s “dates for filing” one, and the USCIS monthly adjustment chart designating which of the Department’s two charts will be used for accepting adjustment of status applications. The USCIS Policy Manual instructs that, “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.… Applicants cannot rely on the DOS Visa Bulletin alone because the Visa Bulletin merely publishes both charts; it does not state which chart can be used to determine when to file an adjustment of status application. The DOS Visa Bulletin contains a clear warning to applicants to consult with the USCIS website for guidance on whether to use the Dates for Filing chart or Final Action Dates chart.”
This policy change applies to pending applications, with the guidance also saying that noncitizens can file a motion to reopen a previously denied adjustment of status application with USCIS by using form I-290B; that noncitizens must generally file motions within 30 days of the decision; and for a motion filed more than 30 days, USCIS may in its discretion excuse the untimely filing if the noncitizen demonstrates that the delay was reasonable and was beyond the noncitizen’s control.
On the USCIS CSPA page, there seems to be more room for motions to reopen where an applicant is not yet 21 using the new guidance as it says, “If we previously denied your adjustment of status application, but you believe your CSPA age calculation is under 21 under this policy guidance, you may file a motion to reopen….”
1. Different immigration offices have different processing times
A reader asks:
I filed my I-130 & I-485 in September 2021, as well as I-765 and medical examination I-693, and then I got my fingerprints on October 15. After that, I never got any news. In July 2020, I called the agent a few days before receiving the EAD and asked how my cases status were. They told me that my interview waived in June 2022 and the case transferred to local office in October 2022, but there was no notice. It has been more than 500 days since the mail was sent. My I-485 status is stall actively reviewed and my I-130 status is still received. What is going on in this situation?
Mr. Lee answers,
Because of the pandemic, lack of funding, and loss of personnel over the past few years, USCIS backlogs have unfortunately ballooned. Although your agent informed you that your interview was waived in June 2022, cases are generally transferred to local offices for purposes of interviewing. “Active review” by USCIS many times means nothing as we have received that information on many cases that have just been receipted by the agency. You can check the processing times of your local field office to see what is its published processing time. For example, in New York currently, the Brooklyn office has a projected time of 40.5 months, Queens office 24.5 months, Manhattan 17 months, and Long Island 27 ½ months. If your case is over the processing time, you should be able to check on its status. To do so, the recommended methods are to call the USCIS Contact Center at 1-800-375-5283 or to launch an inquiry by e-request through egov.uscis.gov/e-request.
2. A I-140 visa petition is a preliminary petition and is not an application for immigration itself
A reader asks:
I applied for EB-1, but received RFE for I-140. I have filed an EB-2 application and I-140 has been approved. Can I file my I-485 directly on the basis of my approved EB-2? Do I have to cancel the pending EB-1 application that has been RFE? I am worried about my application going into a black hole.
Mr. Lee answers,
I will assume for purposes of your question that there are no outstanding contradictions between the information provided in the EB-1 and EB-2 petitions. As long as your priority date is current for EB-2, you should be able to file your I-485 application with the approved EB-2 petition as long as you are maintaining legal status or 180 days or less of illegal status have elapsed and you entered the US with a visa. Assuming the above and that you are not otherwise inadmissible, you do not have to cancel the pending EB-1 petition although there would then seem little reason to keep it if you already have an approved EB-2 petition and the priority date has open visa availability. A visa petition is a preliminary petition and is not an application for immigration itself. An actual application is submitted through form I-485 Application for Adjustment of Status to Permanent Residence or if consular processing your case, form DS-260 Application for Immigrant Visa. Kindly note that withdrawing or canceling your EB-1 petition does not mean that USCIS will discard it. It will keep it although it may or may not become part of your permanent file. Your I-485 should not go into a black hole on account of the EB-1 petition regardless of which action you take.
3. One premium processing fee for one application
A reader asks:
I need to apply for I-140 immediately, but I am hesitating whether to expedite the process? I also want to apply for the extension of h1/h4. Some colleagues suggests that I try to submit 140+h1/h4 extension+h4EAD together. Of course I want to save money, and I want to save a premium process fee, otherwise I will have to submit two premium process fee for the two requests. Is this possible?
Mr. Lee answers,
Unfortunately, there is no bundling of applications for purposes of submitting only one premium processing fee. At this time, USCIS will expedite for $2500 an I-140 petition. It will also expedite H-1B petition for the same amount. The $2500 that you would be paying for the H-1B expedite does not include expediting the H-4 or H-4 EAD although those applications have sometimes benefited from the H-1B premium processing to be adjudicated in shorter time. I note that USCIS decoupled H-1B’s from H-4s, but as a result of litigation, is coupling them again. That means that petition and applications have a higher likelihood of being adjudicated together in the future.