Child Status Protection Act Age Calculation

For family (including VAWA) and employment-based preference and DV categories, an adjustment applicant’s CSPA age is calculated by subtracting the number of days the petition on which the applicant seeks to adjust status was pending (pending time) from the applicant’s age on the date the immigrant visa becomes available to him or her (age at time of visa availability). The formula for calculating CSPA age is as follows:

Age at time of visa availability – Pending time = CSPA Age

While an applicant must file an adjustment application or otherwise seek lawful permanent resident status in order to benefit from CSPA, the date the applicant files an adjustment application is not relevant for the CSPA age calculation.

Example

The applicant is 21 years and 4 months old when an immigrant visa becomes available to him or her. The applicant’s petition was pending for 6 months. The applicant’s CSPA age is calculated as follows:

21 years and 4 months – 6 months = 20 years and 10 months

Therefore, the applicant’s CSPA age is under 21.

If an applicant has multiple approved petitions, the applicant’s CSPA age is calculated using the petition underlying the adjustment of status application.

Example

An applicant is listed as a derivative on an approved Form I-140 filed by his or her parent’s employer. The employer rescinds the parent’s job offer, but the parent receives a job offer from a second employer. The second employer files a new Form I-140 for the parent, and the applicant is listed as a derivative on this second approved Form I-140. The parent files an adjustment of status application based on the second Form I-140 and is approved.

The derivative applicant’s CSPA age is calculated using the petition underlying the principal beneficiary’s adjustment of status application, in other words, the second Form I-140. The derivative may be eligible to retain the priority date from the first Form I-140, but the CSPA calculation uses the second petition, because this is the petition through which the principal beneficiary obtained adjustment of status.

3. Determining Length of Time Petition Was Pending

For family and employment-based preference adjustment applicants, the length of time a petition was pending (pending time) is the number of days between the date that it is properly filed (filing date) and the approval date. The formula for determining the length of time the petition was pending is as follows:

Approval Date – Filing Date = Pending Time

Example

The applicant’s mother filed a petition on the applicant’s behalf on February 1, 2016. USCIS approved the petition on August 1, 2016.

August 1, 2016 – February 1, 2016 = 6 months (or 182 days)

Therefore, the applicant’s petition pending time is 6 months (or 182 days).

Pending time includes administrative review, such as motions and appeals, but does not include consular returns. 

For DV applicants, the number of days the petition was pending is the period of time between the first day of the DV application period for the program year in which the principal applicant qualified and the date on which notifications that entrants have been selected become available. In other words, the pending time is the period of time between the start of the DV Program registration period to the date of the DV Selection Letter.

Example

The DV Program registration period began on October 1, 2012, and the DV Selection Letter is dated May 1, 2013.

May 1, 2013 – October 1, 2012 = 7 months

Therefore, the applicant’s pending time is 7 months.

4. Determining Age at Time of Visa Availability

In order to calculate an adjustment applicant’s CSPA age according to the formula above, the officer must first determine the age at time of visa availability.

In order for the immigrant visa to be considered available, two conditions must be met:

• The petition must be approved; and
• The visa must be available for the immigrant preference category and priority date.

Therefore, the date the visa is considered available for family and employment-based preference applicants is the later of these two dates:

• The date of petition approval; or
• The first day of the month of the DOS Visa Bulletin that indicates availability for that immigrant preference category and priority date in the Final Action Dates chart.

For DVs, the date a visa is considered available is the first day on which the principal applicant’s rank number is current for visa processing.

Determining When an Applicant May File an Adjustment Application

Adjustment applicants can determine when to file their applications by referring first to the USCIS website and then to the DOS Visa Bulletin.

In September 2015, DOS and USCIS announced a revision to the Visa Bulletin, which created two charts of dates. DOS publishes a new Visa Bulletin on a monthly basis. Since October 2015, the Visa Bulletin has featured two charts per immigrant preference category:

• Dates for Filing chart; and
• Final Action Dates chart.

USCIS designates one of the two charts for use by applicants each month. Applicants must check the USCIS website to see which chart to use in determining when they may file adjustment applications. 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. The DOS Visa Bulletin website 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.

Visa Bulletin Final Action Dates Chart used for Child Status Protection Act Age Determination

While an adjustment applicant may choose to file an adjustment application based on the Dates for Filing chart, USCIS uses the Final Action Dates chart to determine the applicant’s age at the time of visa availability for CSPA age calculation purposes. Age at time of visa availability is the applicant’s age on the first day of the month of the DOS Visa Bulletin that indicates availability according to the Final Action Dates chart.

An applicant who chooses to file an adjustment application based on the Dates for Filing chart may ultimately be ineligible for CSPA if his or her calculated CSPA age is 21 or older at the time his or her visa becomes available according to the Final Action Dates chart.

[Nota: Es literalmente imposible calcular un caso de CSPA a futuro. La fórmula de CSPA funciona con casos que ya han sido enviados previamente a USCIS y procesados en el DOS.]

Note: It is literally impossible to calculate a future CSPA case. The CSPA formula works with cases that have already been previously submitted to USCIS and processed in DOS.