GLF has prepared this Newsletter using AILA Practice Pointer (Doc N. 19093001). According to the October 2019 Visa bulletin, USCIS will honor the “Dates for Filing” chart for this month. So, for India (EB-1) filing date is March 15, 2017 while the Final Action Date remains at January 1, 2015. Similarly, for EB-1 Worldwide, the cutoff has moved to July 1, 2019 (based on Filing Date chart). Accordingly, many applicants are now eligible to proceed with filing their adjustment of status applications (I-485), even though their Final Action Date is not current.
However, when applicants having children approaching 21 years of age (age-out), it is important to consider the effect of filing an Adjustment of Status (I-485 AOS) application on the protection afforded to the child under the Child Status Protection Act (CSPA). It is often assumed by applicants that by virtue of the I-485 filing for their aging-out children, they are “in the door” and protected. However, that is not the case, as visa dates are unavailable if the “final action date” is not current. CSPA protection depends on Final Action dates.
According to Chapter 7 of the USCIS Adjudicator’s Field Manual (AFM), USCIS uses the Final Action Date 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 (not Filing Date chart). Hence, an applicant who chooses to file an adjustment application based on the Filing Date chart, may ultimately be ineligible for CSPA, if his or her calculated CSPA age is 21 or over at the time his or her visa becomes available according to the Final Action Date chart. USCIS will not view those individuals as protected by the CSPA despite the fact they will have an adjustment of status application filed on their behalf before reaching age 21.
Therefore, before proceeding with I-485 applications based upon the advancement of Filing Dates in the October 2019 Visa Bulletin, it is advisable to identify circumstances where a child is reaching age 21 and whose priority date is not yet current under the Final Action Dates chart. Please contact GLF lawyers if you have such a situation where your child may be aging out (reaching 21 years of age) to evaluate the best course of action
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At GLF will continue to follow further developments in this matter and we will provide updates through our Newsletter as and when they become available.
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