By Cyrus D. Mehta and Kaitlyn Field*
In early 2023, underneath the Biden administration, USCIS had reversed its longstanding coverage of recognizing solely the Remaining Motion Dates (FAD) within the State Division Visa bulletin as defending a toddler’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. In 2025, nevertheless, underneath the Trump administration USCIS once more modified course and reverted to its prior coverage, stating in an August 8, 2025 Coverage Alert that:
… “a visa turns into accessible for the needs of Youngster Standing Safety Act age calculation primarily based on the Remaining Motion Dates chart of the Division of State Visa Bulletin. The brand new steerage 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 might have relied on that coverage once they filed.
We mentioned this coverage change at size in a previous weblog submit.
Now, USCIS appears to have made one other CSPA-related coverage change within the August 8, 2025 replace to the USCIS Coverage Guide with none public discover. Immigration attorneys are more and more seeing denials of I-485 functions for spinoff kids that have been filed concurrently with an I-140 petition underneath the Dates for Submitting within the Visa Bulletin if the kid was over 21 by the point that the I-140 petition was later authorized. USCIS’ present coverage is {that a} visa turns into accessible on the later of:
- The date the petition was authorized; or
- The primary day of the month of the Division of State Visa Bulletin that signifies {that a} visa is on the market within the Remaining Motion Dates chart.
Nothing within the plain textual content of INA 203(h)(1)(A), nevertheless, states that the I-140 petition should be authorized to ensure that a toddler’s age to freeze for CSPA functions. The identical logic additionally applies to I-130 petitions filed concurrently with I-485 functions. This provision states solely {that a} youngster’s age is protected for CSPA functions when:
“the age of the alien on the date on which an immigrant visa quantity turns into accessible for such alien (or, within the case of subsection (d), the date on which an immigrant visa quantity grew to become accessible for the alien’s dad or mum), however provided that the alien has sought to amass the standing of an alien lawfully admitted for everlasting residence inside one 12 months of such availability…”.
Moreover, INA 203(h)(1)(B) clarifies {that a} youngster’s CSPA age ought to be lowered by “the variety of days within the interval throughout which the relevant petition described in paragraph (2) was pending”.
As a result of INA 245(a)(3) supplies that an applicant is eligible for adjustment of standing if “… an immigrant visa is straight away accessible to him on the time his software is filed”, a visa quantity ought to be accessible on the time that USCIS accepts an I-485 software for processing, even whether it is primarily based on a concurrently filed I-130 or I-140 petition and or the Dates for Submitting within the Visa Bulletin previous to August 15, 2025. After August 15, 2025, a visa quantity ought to be accessible whether it is primarily based on a concurrently filed I-130 or I-140 and I-485 software primarily based on the Remaining Motion Dates. This interpretation is according to the aim of the CSPA, which is to regulate an applicant’s age in circumstances the place they aren’t in a position to file an I-485 till after reaching the organic age of 21. Invoking CSPA is pointless when a spinoff applicant has been in a position to file her I-485 earlier than turning 21.
Equally, he plain language of INA 203(h)(1)(A) requires solely that immigrant visa quantity is on the market with out making reference to the approval standing of the underlying I-140 petition.
USCIS’ new interpretation can have devastating impacts for youngsters whose ages are now not protected underneath the CSPA, and for his or her households. Underneath the brand new interpretation, a concurrently filed I-140 petition and I-485 software on October 20, 2020 underneath the India employment primarily based third desire (EB-3) with a precedence date of July 1, 2013 may solely freeze the age of the kid on October 1, 2025 even when the I-140 petition obtained authorized on January 10, 2022. If the kid was 20 years and 6 months on October 20, 2020, the kid’s age must have frozen on that date earlier than it reached 21 years moderately than on October 2025 when the kid can be effectively previous 21 years of age.
Within the present local weather, inaccurate denials of I-485 functions stemming from this interpretation may lead to spinoff kids being positioned into removing proceedings. It bears consideration, nevertheless, that USCIS’ interpretation can probably be challenged underneath the Administrative Process Act, arguing that the coverage change was arbitrary and capricious as a result of USCIS present no discover or rationalization for its reinterpretation of the statute. Pursuant to Reyes v. USCIS, a federal courtroom has jurisdiction to listen to a statutory interpretation problem underneath the APA, reminiscent of the problem of visa availability underneath the CSPA, a minimum of within the Fourth Circuit. Furthermore, the Supreme Court docket in Loper Shiny Enters. v. Raimondo, has made clear that courts should interpret statutes independently and needn’t defer to an company’s interpretation, offering additional foundation for contesting USCIS’ new coverage.
*Kaitlyn Field is a Associate at Cyrus D. Mehta & Companions PLLC.
