Update: Huge Changes To CSPA In 2023
Huge Changes to CSPA in 2023 Video Summary
In this video, attorney Joseph Tsang explains the changes to CSPA that have happened in 2023. In this video you’ll learn more about CSPA, the implications of the February 2023 memo, and the implications of the August 2023 memo.
What is CSPA?
CSPA stands for the Child Status Protection Act. It’s a law which went into effect in 2002 to help enable children who turned 21 before their green card was approved and effectively “aged out” of their green card application to continue with their application as if they were still under 21 and considered a minor. CSPA allows certain green card applicants to remain classified as children for immigration purposes. It enables families to stay together who may otherwise have been separated due to a lengthy immigration process or other circumstances.
There are two parts to determine eligibility for CSPA that must be fulfilled in order to meet the requirements. The first is when your age is frozen and the second is that you seek to apply for a green card within one year of your frozen age. How these are both calculated can be complicated and with the updates to CSPA in 2023, the method to determine these requirements has changed.
Key Changes to CSPA In 2023
In 2023 there were two important memos from USCIS that changed how CSPA requirements were determined. In its February memo, USCIS updated how the date for a child’s age to be frozen should be determined. Essentially, they allowed for a more favorable date to be used. Then in August 2023, USCIS released another memo to clarify the dates of when someone affected by the February memo “sought to acquire” their green card.
These changes have huge implications for anyone who falls under CSPA eligibility, explained further by attorney Joseph in this CSPA video update.
Full Video Transcript
Your age can potentially be frozen back in time so that you can also get a green card with your parents based on this new August 2023 memo just issued by USCIS. This is groundbreaking; this is changing. Let me walk you through how it works and how we were able to go back in time and freeze a 27-year-old kid’s age and make him a minor so that he can get a green card even though he’s already been denied. Let’s go.
Hi, my name is Joseph. I’m the managing partner here at Tsang & Associates, where we solve legal problems with Creative Solutions. So the legal problem is that some kids are just getting too old and they cannot catch the train to be with their parents and get the green card together if they were born a little bit later, then maybe they can. So a lot of families are in a situation where maybe the older sibling can’t get the green card, but the younger sibling can. The whole family immigrated to the US, but somehow the oldest child just has to go back home, and that’s just so inhumane.
The Child Status Protection Act is trying to help all these different children who have aged out and who are older now, trying to freeze their age, go back in time so that they can get the green card. Now, this is an extremely evolving and complicated area of Law, and that’s why the August 2023 Announcement by USCIS actually changes the game. So to understand the severity and enormity of this memo and in conjunction with the February 2023 memo, you have to understand two requirements for CSPA.
Part one is when is your age is considered frozen. So that is a whole complicated situation we’re gonna do a separate video about it, but assume your age is frozen, and you’re able to be considered under 21.
There’s a second requirement, which is after your age is frozen and when you are able to apply for a green card, you need to do so within one year. You need to have sought to acquire the green card because if you didn’t seek to acquire the green card, even though you are eligible, we would consider it to have been abandoned. You did not do it. So you did not want it. So we’re not gonna give it. That’s the idea. So it’s the second part that is completely changed based on these two memos.
There are certain kids whose age could have been frozen at 19 and 20 or 21, but because of the complexity of CSPA and the situation that they’re in, maybe they did not seek to acquire the green card until now. So we had a kid who’s 27 years old, so this is like after what maybe seven years, eight years when they could have sought to acquire but they didn’t. Well, now these memos basically allow him to seek to acquire. Now let me explain a little bit why that is the case.
[Written Text In Video] “USCIS considers a visa available for purposes of CSPA age calculations at the same time USCIS considers a visa available for accepting and processing the adjustment of status application.”
So the February 2023 memo allows USCIS to use a more favorable date to freeze the child’s age. Before, there are two dates. I’m not going to go into why there’s two tables to calculate the dates; it’s actually done in good intention for bureaucracy reasons, but unfortunately, now there are two tables, and things are getting kind of complicated. There’s dates for filing and there’s final action filing dates. Usually, the dates for the filing table are a little bit more favorable; it’s backdated so the kid’s age is able to be frozen earlier in time. Before the February memo, they could only use the final date filing table, so it’s much more strict.
So USCIS in February says, you know what? We’ll use the earlier date. Okay, we’re just going to help everybody out; we’re going to use the earlier date. Well, then that created all sorts of confusion because back then, people didn’t know you could use this backdate. So they didn’t file. So they didn’t seek to acquire. That’s part two of the requirement. You can’t just deal with part one of the requirement and don’t deal with part two of the requirement. So basically, the February memo paved the way for a lot of potential lawsuits that were about to happen.
[Written Text In Video] “USCIS may excuse an applicant’s failure to satisfy the ‘sought to acquire’ requirement [if they’re eligible for CSPA due to the February memo]”
Six months later, in August, just this past few weeks, USCIS says in this second memo, we understand we did a big change back in February. We’re not going to reverse that change. It’s a good change; we think it’s good, and because it’s so big, we will consider that to be an extraordinary circumstance to allow you to do a late filing. We understand that maybe you didn’t know you could have done it, and so because of this big change, you can now travel back in time and file, and we will consider this change to meet the seek and acquire.
Because remember, technically, it is your burden to have sought to acquire your green card when it was available. But how can you do that if that date is constantly moving, right? Is your date frozen back at 19 years old or 20 or 21? If the person who’s creating the formula keeps on changing the formula, there’s no way you could have taken appropriate action. So that’s what the second memo did. With these two memos combined, the February memo, the August memo, so many kids around the country in the United States right now can effectively travel back in time and file the case as if they filed it back then, regardless of their age now, assuming the calculus works.
They can get a green card—we just did it for a 27-year-old—of course, you still have to meet the other requirements for some category. You need to be unmarried, etc. But if everything is put together well, you calculate it correctly, you educate the officer correctly, you can get a green card. And this is huge.
We will see if the Department of State is going to revise their policy. They’re a little bit behind USCIS, so this is a formal challenge to them if they’ll catch up. But we’ll see because every agency in the government adjudicates things differently, and this just goes to show good attention is not good enough. You still need good people in good agencies to administrate the law accordingly.
CSPA doesn’t change the law; only minors can get a green card with their parents, but the way to calculate their age and who can be considered a minor is now different depending on which agency and which law you use. So these two memos, hopefully, it helps you. Take care. Bye.
[Written Text In Video] February Memo allows USCIS to use a more favorable date for CSPA age-out protection.
August Memo loosens the “sought to acquire” requirement for people affected by the February Memo.