With the EB-5 immigrant investor visa category officially entering an era of retrogression, calculating whether children have 'aged out' has been a persistent challenge for many investors. Today, we are sharing an informative article on how to calculate the age of children for CSPA purposes.
Before diving into the details, let us first understand the basic concept of age-out protection:
1. Child Status Protection Act (CSPA)
Immigration law stipulates that children under the age of 21 may accompany their parents as derivative beneficiaries for immigration. However, as some children grow older during the USCIS processing period and exceed the age of 21, they face the risk of being unable to immigrate with their families. To protect the interests of these children, Congress passed the Child Status Protection Act (CSPA) in 2002 to shield them from the impact of lengthy processing times.
2. Which children are eligible for CSPA protection?
On November 18, 2015, the Foreign Affairs Manual (FAM) 9 FAM 502.1-1(D)(4) clarified the method for calculating CSPA Age:
9 FAM 502.1-1(D)(4) Calculation of CSPA Age for Preference Categories and Derivative Petitions
(CT:VISA-1; 11-18-2015)
(Previous location: 9 FAM 42.42 N12.4; CT:VISA-1910 10-02-2012)
a. For preference category and derivative petitions, the “CSPA age” is determined on the date that the visa, or in the case of derivative beneficiaries, the principal alien's visa became available (i.e., the date on which the priority date became current in the Application Final Action Dates and the petition was approved, whichever came later). The CSPA age is the result of subtracting the number of days that the IV petition was pending with USCIS (from date of receipt to date of approval, including any period of administrative review) from the actual age of the applicant on the date that the visa became available. You should note that in some cases, such as employment preference cases based on the filing of a labor certification, the priority date is not the same as the petition filing date. The petition filing and petition approval dates are the only relevant dates.
The Foreign Affairs Manual (FAM) states: The CSPA age of a child can only be calculated when the visa quota actually becomes available to the applicant (the principal alien’s visa became available).
The calculation method is: Actual age of the child when the visa quota becomes available - I-526 processing time = CSPA age.
3. How to define the date when the visa quota becomes available
The FAM states: the date on which the priority date became current in the Application Final Action Dates and the petition was approved, whichever came later.
In other words, the date the visa quota becomes available is the later of the date the priority date becomes current or the date the I-526 petition is approved.
Here, 'priority date becomes current' refers to the first day of the month in which the investor's priority date is earlier than the cutoff date in Table A of the Visa Bulletin.
For example, an investor's priority date is January 30, 2014.
In March 2016, the Table A cutoff date was January 22, 2014. Since the priority date is later than the cutoff date, the visa is not yet available.
In April 2016, the Table A cutoff date was February 1, 2014. Since the priority date is earlier than the cutoff date, the date the visa became available for the applicant is April 1, 2016.
Therefore, for investors whose I-526 petitions were approved before the retrogression began on May 1, 2015, there was no issue of visa availability at that time, so the date the visa quota became available = the I-526 approval date.
CSPA age = Child's age at I-526 approval - I-526 processing time = Child's age at I-526 filing.
Thus, as long as the child is under 21 years old at the time of filing the I-526, they are protected.
However, for investors whose I-526 petitions were approved after May 1, 2015, since the I-526 is usually already approved by the time the priority date becomes current, the date the visa quota becomes available = the date the priority date becomes current.
CSPA age = Child's actual age when the priority date becomes current - I-526 processing time.
If the CSPA age < 21, the child is protected from aging out and can obtain a visa. If the CSPA age > 21, the child has aged out.
It must be noted that within one year of the Visa Available Day, the applicant must complete the 'Seek to Acquire' action (i.e., filing Form DS-260 or Form I-485) to successfully obtain an immigrant visa.
