December 11, 2023

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Green Card: New US immigration policy on ‘ageing out’ to help children of Indians stuck in green card queues

6 min read
Thousands of Indians living in the United States stuck in green card queues have welcomed the policy manual update by the US Citizenship and Immigration Services (USCIS) on calculating a non-citizen’s age in certain situations, when an immigrant visa number “becomes available” under the Child Status Protection Act (CSPA). It was announced on Tuesday.
This policy change by the USCIS will benefit children of Indians, who age-out of the green card petition filed for them by their parents, when they turn 21.
Notably, the Asian American Native Hawaiians and Pacific Islanders (AA & NHAPI) Commission, appointed by President Joe Biden, had recommended this policy change, along with others, for children of green-card applicants in its meeting in December 2022. Ajay Bhutoria, commissioner in the AA & NHAPI Commission, had presented, under the recommendations of the immigration and citizenship sub-committee, that USCIS should allow children who aged out to retain the green card application priority date of the visa petition filed by their parents’ employers.
“Allowing aged-out children to retain their parents’ priority date will ensure that they do not have to start the green card filing process from scratch and will help around 250,000 kids who are ageing out because they are dependent on the applications of their parents who are facing long green card delays,” Bhutoria had said.
What the change announced by USCIS means ?
For a child to obtain lawful permanent resident status in the United States based on their parents’ approved petition for a family-sponsored or employment-based visa or green card, the child generally must be under the age of 21. If the child turns 21 and “ages out” during the immigration process, the child generally is no longer eligible to immigrate with the parent based on the parent’s petition.
The Immigration and Nationality Act (INA) defines a child as a person who is both unmarried and under 21 years old. Applicants, who apply for lawful permanent resident (LPR) status as children but turn 21 before being approved of so (also known as getting a green card), currently can no longer be considered a child for immigration purposes. This situation is commonly referred to as “aging out” and often means that these applicants would have to file a new petition or application, wait even longer to get a green card, or may no longer be eligible for one.
The background of the new policy is that the US Congress’s Child Status Protection Act (CSPA) to protect certain children from aging out and losing eligibility to obtain lawful permanent resident status based on an approved visa petition, provides a method to calculate the child’s age that considers when an immigrant visa number “becomes available”.
The CSPA does not change the definition of a child. Instead, it provides a method for calculating a person’s age to see if they meet the definition of a child for immigration purposes. The calculated age is the child’s “CSPA age”. This allows some people to remain classified as children beyond their 21st birthday. However, CSPA does not change the requirement that the applicant must be unmarried in order to remain eligible for classification as a child.
The US department of state’s visa bulletin is used to determine when a visa number becomes available. The visa bulletin has two charts – the dates for filing chart and the final action date chart. Under the previous CSPA guidance, the USCIS considered a visa available for purposes of the CSPA age calculation based only on the final action date chart, even if a non-citizen could apply for adjustment of status using the earlier date in the ‘dates for filing’ chart.
Under this new guidance, the USCIS will now use the dates for filing chart to calculate these non-citizens’ ages for CSPA purposes, which provides these non-citizens, many of whom are children of Indians who are working in the US, with more certainty about their eligibility to adjust status.
If these non-citizens are eligible to adjust status because of the change in policy and they have filed for an adjustment of status, they will also be eligible to apply for employment and travel authorisation based on their pending adjustment of status application, and they generally will not lose previously issued employment or travel authorisation.
Non-citizens may also file a motion to reopen their previously denied adjustment of status application with USCIS by using Form I-290B, notice of appeal or motion.
This USCIS policy change is effective immediately and will also apply to pending applications for adjustment of status that will be adjudicated on or after February 14, 2023. Some non-citizen’s with a pending application, may now have a CSPA age that is under 21 based on this change, the USCIS said.
This policy manual update will, however, neither prevent all children from aging out before an immigrant visa is available to them, nor will it prevent children from losing non-immigrant status derived from their parents upon reaching the actual age of 21.
Congresswoman from North Carolina, Deborah Ross, too has welcomed the move by the USCIS. “I am grateful that USCIS has taken action to protect some of the 200,000 documented dreamers who call the United States home. But we cannot stop here. We must act and pass my bipartisan America’s Children Act to provide a pathway to citizenship for all documented dreamers,” she said in a tweet.
Welcoming this policy change, Dip Patel, founder of Improve The Dream, an organisation that represents children of legal immigrants, said: “We are grateful to the USCIS for making this narrow, common sense policy change. It will be life-changing for many young people who narrowly age out of the system after growing up here. It is important to note that while this is a great step, this affects a very narrow population of aging-out children. Much broader changes are both necessary and possible and we hope to continue advocating for broader administrative and legislative solutions such as America’s Children Act.”
Patel added that this change that the USCIS has officially made has been long requested by Improve The Dream. “This is one of the few administrative changes that was easy to make, but it has obviously taken a long time, so very glad to see it. This is considered a policy manual change to interpret how the CSPA age is calculated,” Patel said.
He further said that previously, a child’s age was frozen based on the final action date chart, so a lot of people who waited for decades and actually had a chance to apply for final adjustment of status, still ended up aging out. That will no longer happen because this policy change freezes the age when the dates for filing chart is current.
But even though this is helping children who narrowly age out, tens of thousands of people will continue to age out after living in the US for decades, Patel warns. “My guess is at least a few thousand kids will benefit from those who already aged out. But likely another several thousand will be protected for future years, especially because of the “retrogression” swings in the visa bulletins in past years,” he said.
Improve The Dream is advocating for much broader changes legislatively which include freezing the dates for children at point of application/priority date for legal permanent residence and new pathway to green card. “I just hope they don’t try to pass this off as the one big change for us and stop, because it is a fairly narrow and simple manual change in that regard. It is important to note that while it is an important change, it is helping a narrow population of children of long-term visa holders. But it has taken a long time to get them to do it,” Patel said.
He added that his organisation will continue advocating for bipartisan legislative relief like the America’s Children Act.


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