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Article: Retrogression's Impact on Schedule A Occupations by Cynthia Perez

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  • Article: Retrogression's Impact on Schedule A Occupations by Cynthia Perez

    Retrogression's Impact on Schedule A Occupations

    by


    How a nurse or physical therapist’s child can be included in the parent’s employment- based permanent residence application even after the child turns 21 years old.

    The Department of Labor has long considered nurses and physical therapists to be in short supply in the U.S. As a result, foreign nationals qualified for employment in one of those occupations receive a shortened path to permanent residence: bypassing the labor certification process of showing there’s not a U.S. worker qualified and interested in the position.

    However, while these foreign nationals get to skip the normal first-step in the permanent residence process, they do not enjoy a faster path to permanent residence by any means. Instead, they face the typical visa backlog that other occupations face. The visa backlog (referred to as “retrogression”) can result in years of waiting before a person can obtain permanent residence (i.e. a “green card”). This long wait for a green card is especially problematic for someone who has a teenage child who may turn 21 years old before the permanent residence process is completed.

    A sponsored employee (principal applicant) can include a spouse and/or children as dependents on the employment based application, allowing the entire family to obtain permanent residence. However, for immigration purposes a “child” must be unmarried and under the age of 21 to qualify as a dependent.

    Historically, a child who turned 21 years of age prior to the adjudication of their immigration petition would “age out” meaning that the “child” would no longer be eligible to receive permanent residence based upon the rest of the family’s application. This left some with no option other than to leave the U.S. or file for permanent residence through some other method

    – such as a family sponsored route after the parent obtained permanent residence – which could take many years for a child over 21 to obtain permanent residence.

    The Child Status Protection Act (“CSPA”) – passed almost two decades ago – sought to solve the problem of a child aging out and being excluded from obtaining permanent residence with the rest of the family. The Act allows applicants, in certain circumstances, to retain classification as a “child” even after reaching 21 years old. In essence, the CSPA locks-in the child’s age. Thus, the CSPA can prevent the “aging out” so that the applicant can obtain permanent residence with the parent.

    On November 13, 2020, USCIS issued a policy alert explaining that they had made some clarifications to the current exiting guidance on the CSPA in their policy manual. The clarification to the USCIS Policy Manual specifically provides additional guidance on how to calculate the CSPA age for adjustment of status applicants and provides additional clarification on how applicants can meet the “sought to acquire” requirement for permanent residence, which will further be discussed below.

    Ideally, the CSPA would have provided simple criteria, such as allowing any child to be included as long as the initial application (establishing a “priority date”) was filed before the child


    turned 21. Instead, Congress based the eligibility on a mathematical formula. One of the problems is that the formula cannot be calculated when the application is filed but rather, the variable for the formula can’t be determined until the visa number becomes available, thus resulting in a look back to calculate the formula.

    For employment-based applications 1 – such as those for nurses and physical therapists as well as all other occupations – the child’s “CSPA age” is calculated as follows:

    [The actual age of the child at time the visa number is available] 2 minus [the time the I-140 was pending] 3 equals [the child’s protected age under the CSPS]

    Consider the following example:

    Example: The I-140 was filed when child was 20 years and 9 months. USCIS took 4 months to approve the I-140. The priority date is current and remains current in time for the child to proceed with the immigrant visa. The child is protected because the CSPA age is 20 years and 9 months.

    Actual Age at time of Visa Availability

    21 years and 1 month

    Minus I-140 Pending Time

    (Approval Date - Filing Date = Pending Time)

    4 months

    Equals CSPA Age

    20 years and 9 months

    Clearly, the I-140 must be filed before the child turns 21. But even if the I-140 is filed before the child turns 21, the formula works to protect the child’s status only if the time the I-140 was pending exceeds the timeframe between when the child turned 21 and when the priority date becomes current. Therefore, with a possible aging out child, it is advantageous for the I-140 to be pending for a longer time. For this reason, premium processing is not advisable when a person has a child who may possibly age out during the permanent residence process.

    Consider the following example:

    Example: The I-140 was filed when the child was 20 years and 9 months. The USCIS took 4 months to approve the I-140. The priority date is not current and does not become current until the child is 23 years old. The child is not protected by the CSPA because the age is locked in as 22 years and 8 months.


    1 The CSPA formula varies depending upon the type of case, such that employment-based cases are calculated differently than family-based cases.

    2 The first variable (actual age when the visa number becomes available) can’t be determined until after the I-140 is

    approved, at which time the monthly “visa bulletin” will indicate the current visa availability.

    3 The second variable (time the I-140 was pending) involves subtracting the filing date from the approval date to determine the number of days, weeks or months it took for USCIS to approve the I-140 application.


    Actual Age at time of Visa Availability

    23 years old

    Minus I-140 Pending Time

    (Approval Date - Filing Date = Pending Time)

    4 months

    Equals CSPA Age

    22 years and 8 months

    It is important to note that if the child is eligible to receive a green card under CSPA, the child must seek to acquire an immigrant visa within one year of becoming eligible (i.e. within one year of the I-140 approval or within one year of the priority date becoming current, whichever is later). 4 On November 13, 2020, USCIS issued clarifying audience about the one-year sought to acquire requirement and for those doing consular processing, seeking to acquire an immigrant visa can be met by the following:

    · Submitting a completed Immigrant Visa Electronic Application (Form DS-260), Part I to the Department of State (DOS);

    • Paying the immigrant visa fee to DOS;

    · Paying the Affidavit of Support (Form I-864) review fee to DOS (provided the applicant is listed on the Affidavit of Support); or

    · Having a properly filed Application for Action on an Approved Application or Petition (Form I-824) filed on the applicant’s behalf. 5

    It is not necessary for the consular interview to be scheduled or even completed within the one-year period.

    For those filing for adjustment of status within the U.S. – instead of consular processing, the applicant must properly file the I-485, Application to Register Permanent Residence or Adjust Status. The I-485 application should be filed as soon as possible in the event that there is another retrogression.

    However, what happens if the child’s age is protected under the CSPA and the applicant proceeds with “seeking to acquire” permanent residence and then retrogression occurs again? Fortunately, the child’s age can still be protected. If the applicant meets the “seeking to acquire” requirement and the priority date retrogresses, this will serve to lock in the Applicant’s CSPA age on the date the visa became available regardless of the priority retrogression.

    On the other hand, what happens if the Final Action Date retrogresses before the applicant has one year of visa availability and the applicant has not sought to acquire his/her visa? For consular processing cases, the Department of State has stated in the Foreign Affairs Manual – a controlling source for immigrant visa processing – that “in order to seek to acquire lawful permanent residence, an alien beneficiary must actually have one full year of visa availability.” 6 Therefore, if the Final Action Date retrogresses before the applicant has one year of visa


    4 The child must also remain unmarried until after permanent residence is granted.

    5 Volume 7, Part A of the USCIS Policy Manual

    6 9 FAM 502.1-1(D)(7) Retrogression of Application Final Action Dates


    availability and the applicant has not sought to acquire his/her visa, the applicant will be able to do so once a visa number becomes available again.

    Consider the following example:

    Example: The child’s priority date became available on March 1, 2019 according to the Final Action Dates chart but on September 1, 2019 there was a retrogression. However, on March 1, 2020 the priority date current. In this case, the 1-year “seeking to acquire clock” will reset on March 1, 2020 allowing the Child another year to meet the seek to acquire requirement.

    It is important to note that if the applicant did have one full year of visa availability and the applicant did not seek to acquire the visa, the clock will not reset in the event of a retrogression as the applicant had one full year of visa availability. Therefore, the applicant should seek to satisfy the sought to acquire requirement as early as possible in order to be able to take advantage of the CSPA.

    For adjustment of status cases, USCIS has stated that if an Applicant files the application based on the Final Action Dates Chart and the priority dates retrogress, if the applicant’s CSPA age was under the age of 21 then that CSPA age will be locked in. 7 However, if the priority date is current based on the Final Action Dates Chart and the applicant does not file the I- 485, Application to Register Permanent Residence or Adjust Status, if the priority date retrogresses, the applicant’s age will not be locked in. Rather, the CSPA age will have to be calculated again once the priority date is current based on the Final Action Dates Chart.

    Conversely, if an applicant files for adjustment of status based on the Dates for Filing Chart, the applicant’s age will not be locked at the time of filing. The CSPA age will have to be calculated once the priority date is current based on the Final Action Dates Chart.

    Consider the following example:

    Example: In March 2019, the child files an adjustment application based on the Dates for Filing Chart, but the priority date is not current based on the Final Action Dates. On July 1, the child’s priority date is current based on the Final Action Dates Chart. However, on August 1, the priority dates again retrogress. In this scenario, USCIS will calculate the child’s CSPA age using July 1 as the visa availability date. Most importantly, if the child’s calculated CSPA age was under 21, his/her CSPA age will be locked in until USCIS makes the final adjudication of the case. However, if the child’s calculated CSPA age is over the age of 21 on July 1 (using the July 1 visa availability date), the applicant will have aged out and USCIS will deny the application.

    Therefore, it is highly recommended that in order to lock the CSPA age, the applicant apply for adjustment of status as soon as possible according to the Final Action Dates chart.


    7 Volume 7, Part A of the USCIS Policy Manual


    In sum, the CSPA can, in certain circumstances, permit a child to be included in the permanent residence application even after turning 21 years old. To have any chances of locking in the child’s age to a pre-21 year age, the I-140 must be filed before the child turns 21, the child must remain unmarried throughout the entire permanent residence process, and the applicant must “seek to acquire permanent residence” within one year of the date becoming current. Plus, the longer the I-140 is pending – if a visa number is not available – the better the chance the child’s age will be protected.


    About The Author

    Cynthia Perez is is an attorney in the West Coast office of Hammond Neal Moore, LLC. She practices employment-based immigration law in the healthcare sector and other business sectors.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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