USCIS’ Updated CSPA Guidance and Transferring Underlying Basis
On February 14th, U.S. Citizenship and Immigration Services (USCIS) issued policy guidance that updates the way the legal age of a child who has applied for Adjustment of Status (AOS) as the beneficiary of an underlying petition in a family-based (FB) or employment-based (EB) preference category is calculated under the Child Status Protection Act (CSPA). In doing so, it revised its interpretation of when a green card “becomes available” to the child under the CSPA by treating either the Visa Bulletin’s Final Action Dates or its Dates for Filing as controlling, depending on which of these sets of cut-off dates USCIS used to accept the child’s AOS application for filing.
Previously, USCIS treated Final Action Dates, exclusively, as controlling to determine when a green card “becomes available,” even if the child’s AOS application was accepted for filing based on Dates for Filing. The update is a welcome change that increases the number of children who are protected from “aging-out” of eligibility for a green card as a result of turning 21 years old before USCIS, marred by processing backlogs, is able to adjudicate their AOS applications, despite the fact that they were under 21 years old at the time their applications were filed.
But I would also urge USCIS to make another, related update by issuing policy guidance that likewise specifies that the set of cut-off dates that controls whether a green card is “immediately available” to determine if a transfer of the underlying basis of a pending AOS application can be requested in a given month is the same set of cut-off dates that USCIS is using to determine if it will accept AOS applications for filing that month.
How AOS Applications Work Under the CSPA
Under the CSPA, the legal age of a child who has applied for AOS as the principal or derivative beneficiary of an underlying petition in a FB or EB preference category is calculated by subtracting the pending time of the underlying petition from the child’s actual age on the date that a green card in the petition’s preference category “becomes available” to them. The date that a green card in the underlying petition’s preference category “becomes available” to the child is either the date that the petition is approved or the first day of the month in which the beneficiary’s priority date is “current” according to that month’s Visa Bulletin, whichever is later. The priority date is “current” in a given month if it falls before the cut-off date for the combination of the underlying petition’s preference category and the beneficiary’s country of chargeability.
Since September 2015, two sets of cut-off dates have been posted to the Visa Bulletin each month for the FB and EB preference categories: (1) Dates for Filing and (2) Final Action Dates. In a given month, USCIS may refer to either set of cut-off dates to identify whether a priority date is current to determine if it will accept an AOS application for filing that month. But before the February 14th update to its policy guidance, USCIS deemed a priority date current in calculating a child’s age under the CSPA only if it fell before the relevant Final Action Date, which is never later than the corresponding Date for Filing. This meant that, if, in a month that USCIS was accepting AOS applications for filing based on Dates for Filing, a child filed their application as the beneficiary of an underlying petition in a FB or EB preference category, the child was not protected by the CSPA from aging out during the pendency of the application unless or until the priority date was also current according to Final Action Dates. Because of the possibility that this would not occur for a long period of time, the child continued to face the prospect of aging out and, in turn, of being separated from their families, despite having timely filed their AOS application well before they turned 21 years old. Thankfully, USCIS’ updated policy guidance resolves this issue.
Continued Recommendations for USCIS
But USCIS can further mitigate convolution and discord across its policies by extending its updated interpretation of when a green card “becomes available” under the CSPA to when a green card becomes “immediately available” under its transfer-of-underlying-basis policy. A transfer of underlying basis has the effect of switching the legal basis of a pending AOS application from one petition to another. Although USCIS may refer to either Dates for Filing or Final Action Dates in a given month to determine if it will accept an AOS application for filing that month, it must refer exclusively to the Final Action Dates to determine if it can approve an application that month. Therefore, a transfer of underlying basis may facilitate the issuance of a green card to an AOS applicant more quickly, for example, if they are the beneficiary of two separate petitions in a FB or EB preference category, but the priority date becomes current according to Final Action Dates sooner in the preference category of the petition that does not presently serve as the underlying basis of their pending application. Under current USCIS policy, a request to transfer underlying basis may be made only if a green card is “immediately available” in the preference category of the petition to which the transfer is sought. But the guidance does not specify if this means the priority date must be current according to Dates for Filing or Final Action Dates. Largely, practitioners seem to understand the policy to mean the latter, but it would be helpful if USCIS issued clarifying guidance.
USCIS could do this by updating its existing guidance to explicitly state that the set of cut-off dates controlling the ability to request a transfer of underlying basis in a given month is the same set of cut-off dates controlling the ability to file an AOS application that month. It’s true that since, as noted above, AOS applications cannot be approved unless a priority date is current according to Final Action Dates, it could, in some instances, be premature to request a transfer of underlying basis solely based on the priority date being current according to Dates for Filing. But this should be a judgment reserved for the applicant and their attorney. Moreover, the fact remains that the same processing backlogs that prompted the enactment of the CSPA also affect USCIS’ ability to timely adjudicate requests to transfer underlying basis. Therefore, the option to file these requests based on Dates for Filing in a given month, assuming USCIS is also using Dates for Filing to accept AOS applications for filing that month, can increase the likelihood of an otherwise fully processed application being approved in a timely manner once the priority date in the new preference category eventually becomes current according to Final Action Dates. This, in turn, would avoid the need to wait for the priority date to become current according to Final Action Dates to make the transfer-of-underlying-basis request in the first place and could reduce the risk of a subsequent retrogression in Final Action Dates such that the priority date, before USCIS is able to adjudicate the request and approve the AOS application, reverts to not being current.
Accordingly, USCIS should use its latest update to its CSPA guidance as an opportunity to issue a similar update to its guidance on transfer-of-underlying-basis requests and thereby promote greater consistency across its policies. Doing so would help serve the goals stated in USCIS’ FYs 2023-2026 Strategic Plan of ensuring that immigration policies support a strong immigration system with integrity, investing in a workforce that drives high-quality organizational performance, and promoting effective and efficient organizational management and stewardship.
