By Cyrus D. Mehta and Kaitlyn Field*
In early 2023, USCIS reversed its longstanding coverage of recognizing solely the Last Motion Dates (FAD) within the State Division Visa bulletin as defending a baby’s age underneath the Youngster Standing Safety Act (CSPA), and agreed to make use of the Dates for Submitting (DFF) to guard the age of the kid. This shift in coverage allowed the age of many extra youngsters to be protected underneath the CSPA. USCIS acknowledged that:
“After the publication of the Could 2018 steering, the identical applicant for adjustment of standing might have a visa “instantly obtainable” for functions of submitting the applying however not have a visa “change into obtainable” for functions of CSPA calculation. Candidates who filed primarily based on the Dates for Submitting chart must pay the payment and file the applying for adjustment of standing with out figuring out whether or not the CSPA would profit them. To handle this problem, USCIS has up to date its insurance policies, and now considers a visa obtainable to calculate CSPA age on the similar time USCIS considers a visa instantly obtainable for accepting and processing the adjustment of standing software. This replace resolves any obvious contradiction between completely different dates within the visa bulletin and the statutory textual content relating to when a visa is “obtainable.”
Cyrus Mehta had lengthy advocated for the usage of the DFF for CSPA calculation functions, and mentioned the implications of this coverage change at size in a previous weblog entitled “CSPA Disharmony: USCIS Permits Youngster’s Age to be Protected underneath the Date for Submitting Whereas DOS Permits Youngster’s Age to Be Protected underneath the Last Motion Date”.
Now, USCIS with out advance discover has once more reverted to its prior coverage, stating in an August 8, 2025 Coverage Alert that:
… “a visa turns into obtainable for the needs of Youngster Standing Safety Act age calculation primarily based on the Last Motion Dates chart of the Division of State Visa Bulletin. The brand new steering applies to requests filed on or after August 15, 2025. We are going to apply the Feb. 14, 2023, coverage of CSPA age calculation to adjustment of standing functions pending with USCIS earlier than August 15, 2025, as these aliens could have relied on that coverage once they filed.
This coverage replace ensures each USCIS and the Division of State use the Last Motion Dates chart within the Visa Bulletin to find out when a visa turns into obtainable for the needs of CSPA age calculation. This establishes a constant CSPA age calculation for aliens who apply for adjustment of standing and immigrant visas. The Feb. 14, 2023, coverage resulted in inconsistent therapy of aliens who utilized for adjustment of standing in the USA versus aliens exterior the USA who utilized for an immigrant visa with the Division of State.”
This variation will change into efficient for functions filed on or after August 15, 2025.
USCIS’ February 14, 2023 coverage that used the DFF to guard the age of the kid was salutary, and will have been left in place. This coverage protected many extra youngsters from growing old out, and had a transparent authorized foundation because the DFF allowed one to use for adjustment of standing primarily based on visa availability underneath INA 245(a)(3) whereas the kid’s age was additionally frozen primarily based on visa availability underneath INA 203(h)(1)(A).
The August 2025 coverage reversal is ostensibly aimed toward making certain that each the USCIS and the Division of State (DOS) use the FAD chart to find out when a visa turns into obtainable for functions of the CSPA calculation. A discrepancy certainly existed between the USCIS and State Division coverage, as DOS didn’t problem steering that corresponded to USCIS’ February 14, 2023 steering, nor did it replace International Affairs Handbook (FAM) accordingly. Nonetheless, each the USCIS and State Division might have as an alternative used the DFF relatively than the FAD to find out visa availability.
However the discrepancy between USCIS and State Division coverage, utilizing the DFF for CSPA calculation functions benefited youngsters within the U.S. in a nonimmigrant standing whose age obtained protected underneath the DFF, and who sought to amass everlasting residence inside one yr of visa availability, though their mother and father obtained an immigrant visa, and everlasting residence, underneath the Last Motion Dates some years later. It additionally benefitted the whole household in the event that they have been right here within the US and all filed I-485 adjustment functions collectively because it saved them united and so they have been in a position to derive advantages from the I-485 corresponding to work authorization and journey permission.
USCIS’ coverage reversal can have vital implications for kids whose age will now not get protected underneath the CSPA. Kids of oldsters who have been born in backlogged nations corresponding to India and China are prone to undergo probably the most extreme hardship, as it could be a few years earlier than the FAD turns into obtainable, ensuing within the youngsters growing old out earlier than their age could be protected underneath the CSPA. Kids who could age out earlier than their age can get protected underneath the CSPA could also be reluctant to even file an adjustment of standing software within the present local weather, as denials if the kids age out might lead to them being positioned into elimination proceedings.
It bears contemplating whether or not the merciless coverage reversal can doubtlessly be challenged underneath the Administrative Process Act, arguing that the reversal was arbitrary and capricious because the USCIS didn’t present a reasoned rationalization for its motion underneath DHS v. Regents of the College of California. In Regents, which was mentioned intimately in a prior weblog, the Courtroom struck down the rescission of the DACA program on the bottom that DHS failed to offer a reasoned rationalization for taking this motion. The Courtroom additionally centered on the company’s failure to issue within the reliance pursuits of DACA recipients, lots of whom had enrolled in diploma applications, launched into careers, began companies, bought houses, and even married and had youngsters, all in reliance on the DACA program.
The anomaly between the USCIS and DOS coverage existed when the brand new coverage was introduced on February 23, 2023, and so to necessitate a reconciliation is a poor justification for reversing the coverage. Nothing has modified since 2023. Furthermore, even when USICS has offered an August 15, 2025 cutoff date, the reversal would nonetheless affect reliance pursuits as enunciated by the Supreme Courtroom majority in Regents. The DFF will nonetheless enable candidates and their youngsters to file I-485 functions after August 15, however as soon as their youngsters age out, their I-485 will get denied. Kids are prone to be deterred from submitting I-485 functions if there’s a threat that they are going to age out earlier than the FAD turns into present. Regardless of the weighty affect on reliance pursuits, USCIS has failed to offer a reasoned rationalization for the reversal.
Because the USCIS will proceed to make use of the DFF to guard the age of the kid till August 15, 2025, candidates who’re eligible to file I-485 adjustment of standing functions ought to achieve this instantly. After August 15, 2025, whereas a baby might be able to file an I-485 underneath the DFF it won’t shield the age of the kid. If the FAD doesn’t change into present earlier than the kid turns into 21, or if the kid turns 21 and can’t make the most of the age safety components underneath the CSPA, the kid’s I-485 software will get denied. This might doubtlessly jeopardize the kid’s probabilities of altering to a different nonimmigrant standing corresponding to F-1. Though the Board of Immigration Appeals (BIA) in Matter of Hosseinpour, 15 I&N Dec. 191 (B.I.A. 1975) acknowledged an inherent twin intent in all nonimmigrant visas, it could be not be acknowledged by this Administration underneath the circumstances of an I-485 that was filed and denied. If youngsters proceed overseas for an F-1 visa they too threat refusal of the visa underneath INA 214(b) as they could not be capable to rebut the presumption that they’re intending immigrants.
*Kaitlyn Field is a Accomplice at Cyrus D. Mehta & Companions PLLC.
