Ritu Jha-
Earlier this week, the US administration announced a policy manual change under the Child Status Protection Act (CSPA) to protect certain non-citizen children (called Dreamers, after the Dream Act), including Indians, from losing eligibility to obtain lawful permanent resident status.
The update determines when a child’s age can be “frozen” and protected from “aging out”.
For a child to obtain lawful permanent resident status in the US based on his/her parent’s approved petition for a family-sponsored or employment-based visa, 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.
Under the new guidelines, the USCIS will now use the dates for filing chart to calculate these non-citizens’ ages for CSPA purposes, which provides these non-citizens with more certainty about their eligibility to adjust their status, the US Citizenship and Immigration Services (USCIS) announced.
This change was not easy. Consistent advocacy by immigration activists and policymakers managed to bring about this small but significant change; a modification that has only partly gladdened Dip Patel, president of ImproveTheDream.org, who has who has been advocating on behalf of Dreamers since 2017. Why? Because, “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,” Patel told indica on Wednesday.
He said that the USCIS “should not pass this off as the one big change for us and stop, because it is a fairly narrow and a simple manual change.”
Patel said this policy manual change was an easy administrative one. “But it has obviously taken a long time for it to get to this, so am glad to see it,” Patel said. “We will continue advocating for bipartisan legislative relief like the America’s Children Act.”
In November, indica highlighted how when Ajay Bhutoria, a member of the President’s Advisory Commission on Asian Americans, Native Hawaiians, and Pacific Islanders, made recommendations to both President Joe Biden and USCIS, asking the latter to amend its regulations. Bhutoria, during the meeting, urged the USCIS to allow aged-out children to retain their parents’ green card applications and permit the aged out to file green card applications using the priority date of the visa filed by their parents’ employers.
Evidently, USCIS has agreed to give only partial relief, one that will help, according to some government estimates, approximately 200,000 Dreamers.
Emily Neumann, managing partner, Reddy & Neumann, P.C., a law firm that specializes in immigration, told indica, “This policy change won’t help all of them because of the backlog for individuals born in India and China, but it is a step in the right direction.”
Neumann said she wouldn’t know exactly how many will ultimately benefit from the change.
According to the American Immigration Council, in April 2020, there were an estimated 253,293 children waiting to obtain permanent residency based on their parents’ employment-based immigrant visa petitions and at risk of aging out. These children’s parents are in the US on H-1B, L-1, E-1, and E-2 visas.
These documented dreamers grew up in the US, and many arrived as infants. However, their dependent visas expire at age 21, forcing many of them to self-deport to countries they might not even know, or opt for the F-1 visa (international student) status like Dipsa (name changed). A 25-year-old who had no option but to change to F-1 visa
since she lost the H-4 dependent visa status, Dipsa told indica that she is pleased to hear the news, and hoped that she can be included in this newly announced policy.
“I will talk to my attorney,” she said. “From an F-1visa to applying for an H-1B and then getting a green card is a long journey,” she said. For the purpose of this story, Dipsa said she wanted to stay anonymous.
Neumann said that this change will benefit will children who were under 21 at the time of filing their adjustment of status along with their parents (either based on their actual age or their age calculated under the Child Status Protection Act), but whose Final Action Date did not become current before they turned 21.
Prior to this change, those children would have had their adjustment of status applications denied because they aged out. This also benefits those who are able to file in the future based on the ‘Dates for Filing’ as their age will be frozen – assuming their parent’s I-140 is approved and their priority date becomes current under the ‘Dates for Filing’ chart before they turn 21.
“They will have certainty knowing that they will remain eligible for the green card in the future, even after they turn 21,” Neumann said. “This means they don’t have to switch to an F-1 visa to complete their studies and eventually obtain an H-1B and end up in the same line their parents were in. This can also benefit those whose applications were previously denied under the old interpretation. They are now eligible to file a Motion to Reopen to have their case looked at again.”
Neumann said this rule is effective immediately and will remain valid unless a future administration changes the interpretation.
But how will USCIS calculate the age? Neumann said that assuming the I-140 petition is approved, the age will be calculated at the time the parent’s priority date is current according to the Dates for Filing chart.
At that moment, the amount of time the I-140 was pending will be subtracted from the child’s age to calculate their CSPA age. If the real age or CSPA age is under 21, the child can file the adjustment of status along with the parent and receive the green card even though they may turn 21 while the application is pending.
Neumann said the 30 days mentioned in the USCIS announcement is relevant to those who may have the I-485 denied under the old interpretation. “They have the ability to file a Motion to Reopen within 30 days of the denial in order to have USCIS take a second look at the application under the new interpretation.”
Chicago-based immigration lawyer Tejas Shah told indica, “Yes, it is good news for legal dreamers.”
He adding on said, “As you’re aware, the Visa Bulletin jumped significantly ahead for India and China in October 2020, and has since retrogressed. If a minor child has since aged out (turned over 21) after filing a green card application as a minor derivative with a parent, the previous CSPA calculation would have treated the child as ineligible for a green card as a derivative. But the new CSPA calculation will allow that child to qualify as a derivative, even if they age out during retrogression.”
Patel said, “My guess is at least a few thousand kids will benefit from those who have 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. Obviously not the same as what we were trying to do legislatively (freezing at point of application/priority date) and new pathway to green card, but this still helps several thousand people who narrowly aged out over last decade (and many who would in coming years).”
