Child turns 21 without a green card: CSPA explained

CSPA Age Freeze

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This question is called the child's age freeze under CSPA, and it is regulated by a special American law from 2002. Without a proper understanding of this topic, families lose children in immigration applications more often than due to all other mistakes combined: not because they have bad lawyers, but because one point about when exactly the age is "frozen" and what needs to be done within a year after was misunderstood.

This article is a complete guide to CSPA in Russian in 2026: the age calculation formula, the one-year rule, the reversal of USCIS policy on August 15, 2025, strategies for different countries and green card categories. Applicable to all major scenarios for employment-based green cards (EB-1A, EB-2 NIW, EB-2, EB-3) and family green cards (F2A, IR-2, F2B).

Who is this article for

This article is a knowledge base for families who find themselves in one of the situations below and have a daughter or son under 21 years old:

• You are applying for a green card through EB-1A talent visa, EB-2 NIW, regular EB-2, or EB-3, and your petition includes children as family members. The main applicant in the immigration case is called principal, and his wife and children are derivative beneficiaries (they receive the green card together with him as "dependents").
• You are an LPR (green card holder), filing an I-130 for a child under the family category F2A.
• You are a U.S. citizen (USC), filing an I-130 for a child as an Immediate Relative (IR-2).

What are all these F and IR in one line.

When a green card is requested through family, there are two fundamentally different groups.

Immediate Relatives (IR) are the closest relatives of a U.S. citizen (USC): spouse, child under 21, parent. There are no quotas for them, no waiting lines, and the visa is available immediately after I-130 approval. IR-1 - spouse of USC, married for more than 2 years. CR-1 - spouse of USC, married for less than 2 years (conditional status visa). IR-2 - child of USC under 21. IR-5 - parent of USC.

Family preference - all other relationships. There are quotas for them, and the waiting times stretch for years. F1 - unmarried adult children of USC (21 and older). F2A - spouse and minor children of LPR (under 21, unmarried). F2B - unmarried adult children of LPR (21 and older). F3 - married children of USC of any age. F4 - siblings of USC.

Further in the text, these codes appear frequently. The main practical meaning: IR is always faster and more generous regarding CSPA. F-categories always have a queue and a special age calculation formula.

• You already have an approved petition and are preparing to submit DS-260 at the consulate or I-485 in the USA.
• You won the DV lottery and have children in the family.

If none of this applies to you, there is little useful information in this article, and you can close it. If at least one "yes" - read on, especially if the child is already over 18.

What We Are Discussing

In this article, we answer the main question: at what exact moment does the child's age freeze, and what needs to be done to ensure they do not "age out" before turning 21.

Submitting a petition does not freeze age. Receipt Notice does not freeze age. Even the approval of I-140 itself does not always freeze age. This is the most dangerous misconception in this topic: when a parent thinks that the child is protected from the moment of submission, and then learns a month before the consulate interview about aging out - this means that the child has "aged out" according to the CSPA formula (formally exceeded 21 years according to immigration calculations), and the green card through the parental petition is no longer available to them.

The rules depend on the category and country. For a Russian citizen under EB-1A or EB-2 NIW - one story (short, protection almost automatic). For an Indian under EB-2 - another (12-year backlog, without special strategies the child aged out). For a US citizen with I-130 for a daughter - a third, the most generous (age froze on the day of I-130 submission, and there is no rush).

Next, we will analyze all four scenarios, the calculation formula, the one-year rule for DS-260/I-485, the policy reversal on August 15, 2025, strategies for Indians and Chinese (cross-chargeability - a legal maneuver through the spouse's country of birth, upgrade to EB-1A, EB-5 self-petition - investor green card from $800,000) and pitfalls: the child's marriage kills CSPA protection, retrogression of the bulletin (when the date in the visa bulletin moves backward instead of forward) and concurrent filing trap (the trap of simultaneous filing I-140 + I-485).

What is CSPA

The very law on which all this is based is called Child Status Protection Act (CSPA) - as published by USCIS on its official page. This is a US law from 2002 (Public Law 107-208), which allows in immigration applications to calculate the child's age not by biology, but by a special formula - taking into account how long USCIS has been processing the petition.

If there were no CSPA, any delay by USCIS of six months to a year would automatically exclude aging children from parental applications, and families would be separated for no reason. With CSPA, families have a protection tool - but it does not work automatically, and its interpretation changes approximately every two years through policy alerts USCIS. The last significant change - August 2025, reversal of the 2023 policy.

A few new terms that will appear below.

• Final Action Dates (Chart A) - a table in the Department of State visa bulletin: "when the visa can actually be approved." From August 15, 2025, it is the only table used to calculate CSPA age.
• Pending time - how many days the petition "hung" in USCIS for review (from Receipt Date to Approval Date). This number is deducted from the child's biological age. The only "gift" that CSPA gives to the family.
• Sought to acquire - the one-year rule. After the child's age is frozen, they have 12 months to submit their own I-485 or DS-260. If not submitted - the protection is canceled.
• Aging out - the child turns 21 according to the CSPA formula, and they are no longer a "child" in the immigration sense. They will no longer receive a green card through the parental petition.

CSPA for EB-1A, EB-2, EB-3: when age freezes

In conversational practice, it is said that CSPA "freezes age at 21." It is more accurate to say: CSPA either changes the date on which the child's age is considered, or creates a special "immigration age" by subtracting from the biological age the time that USCIS spent on the petition. This deductible time is called pending time.

What is pending time in simple terms.

Pending time is how many days or months your petition (I-140 for employment or I-130 for family) was in USCIS for review. The count starts from the date when USCIS physically received the document package (Receipt Date, printed on the I-797C form - that very first letter "we have received your petition"), and ends on the approval date (Approval Date, on the I-797 form).

A simple example: if you submitted I-140 on March 1 and received the Approval Notice on November 1 of the same year. Pending time = 8 months.

CSPA logic: the government recognizes that while the petition was sitting on the officer's desk, the child is not to blame for this. Therefore, at the time of age freeze, these months or years of pending time are deducted from the child's biological years. This is the only "gift" that CSPA gives to the family - and often it is enough to save the case.

The longer USCIS reviewed the petition, the more can be deducted. Therefore, in backlogged categories (India, China in EB-2 and EB-3), a long pending time is paradoxically good for the child. In categories with an open queue (EB-1A for Russia, for example), the difference between fast and slow processing for CSPA age is often zero - but Premium Processing is still used to physically obtain the green card faster.

After this deduction, we get CSPA age - that very "immigration age." If it is under 21, the child is protected. If 21 or older - aged out, and they can no longer obtain a green card through the parental petition.

Therefore, the question "on what date is the age frozen" cannot be answered without specifying who you are, what you are applying for, and in which category. Next are four main scenarios. Find yours.

Scenario 1: Russia / Belarus / Ukraine / Kazakhstan / Armenia / Georgia + EB-1A or EB-2 NIW

Good news for Russian speakers regarding the talent visa. In the October 2026 bulletin, for Russia, Belarus, Ukraine, Kazakhstan, and other countries in the "All Chargeability Areas" category, EB-1A shows C (Current). EB-2 (NIW included) also showed C from April through September 2026, but the October 2026 bulletin sets its Final Action Date at January 1, 2025: for EB-2 NIW the child's age freezes only once the priority date is earlier than that date.

For EB-1A the queue opens at the time of filing the I-140, the child's age will be fixed on the day of approval of your petition, and Premium Processing (15 business days) currently costs 2,965 dollars and is used in the overwhelming majority of EB-1A cases. Without it, the standard processing time for I-140 EB-1A is from 6 to 15 months depending on the Service Center. The Visa Bulletin is updated every month - always check the latest dates on travel.state.gov/visa-bulletin before taking action.

What this means in practice:

Filed I-140 - age not frozen. Received Receipt Notice - not frozen. Received Approval Notice - this is where it gets frozen. This is the day on which the child's age will be counted later.

From the biological age of the child on the date of approval, the pending time will be subtracted. This will result in the CSPA age. If it is less than 21 - the child is protected, and they have 1 year to file their DS-260 (if abroad) or I-485 (if in the USA).

Example with Premium Processing (typical for EB-1A in 2026). Ivanov from Moscow, daughter Sonya is 20 years and 6 months old on the day of filing. Filed EB-1A on March 1, 2026, through Premium Processing. USCIS approved on March 22, 2026 - in 15 business days. Pending time is about 3 weeks, or approximately 22 days.

On the date of approval, Sonya is already 20 years, 6 months, and 21 days old. Subtracting 22 days of pending time, Sonya's CSPA age is frozen exactly at 20 years and 6 months.

Sonya has 1 year after March 22, 2026 - that is, until March 22, 2027 - to file DS-260 (if in Moscow) or I-485 (if in the USA). After that, her age is formally frozen, and she will receive a green card along with her parents, even if biologically she will be 22 at the time of the interview at the consulate.

Example without Premium (rare for EB-1A in 2026, but sometimes people save). The same initial conditions: daughter 20 years and 6 months at filing. I-140 without Premium for EB-1A can be processed from 6 to 15 months, in rare cases longer. Let's say USCIS approved the petition after 1 year and 8 months. On the date of approval, Sonya is already 22 years and 2 months old. Subtracting the pending time of 1 year and 8 months - we get CSPA age 20 years and 6 months. The same figure as in the first case.

Here it is important to understand the mechanics. Pending time is still subtracted, and for categories like EB-1A with an open queue, the CSPA age is the same in both cases. But in the second case, while the petition "hangs" for 1 year and 8 months, the child and parents physically wait for the green card for almost 2 years, not just a few months. And if the bulletin suddenly rolls back in 2027, the case without Premium risks getting into an unpleasant situation. Therefore, the overwhelming majority of EB-1A cases in 2026 go through Premium Processing.

Main takeaway for Russian speakers in EB-1A and EB-2 NIW. The speed of I-140 processing is crucial. If the child is close to 21, do not skimp on Premium Processing.

• For EB-1A: 2,965 dollars turns 6-15 months into 15 business days.
• For EB-2 NIW: 2,965 dollars turns 18-26 months into 45 business days.

NIW cases take significantly longer than EB-1A, so in absolute months, the savings from Premium for NIW are even greater.

Scenario 2: India or China + any EB category with a queue

Bad news for Indians and Chinese. For you in EB-2, EB-3, and even EB-1, the bulletin shows not C, but a specific date. Sometimes a date from 10-12 years ago. Approval of I-140 does not freeze age by itself. Age will freeze only when the date in the bulletin catches up with your priority date (the priority date, which is your "place in line" - for EB cases, this is the date when USCIS received your I-140). And this will take years.

In April and May 2026 the Final Action Date for EB-2 India stood at July 15, 2014, from July through September 2026 the cell read U (no numbers), and the October 2026 bulletin sets it at November 1, 2013. This means that the State Department issues EB-2 visas only to those Indians who filed their I-140 before the date in the current bulletin. The backlog is about 12 years, and in 2025, the bulletin for India EB-2 moved only a few months.

If you filed your I-140 in 2024, your turn will come around 2036-2038.

Approval of I-140 does not freeze anything. Age will freeze only at the moment when the date in the Visa Bulletin catches up with your priority date. By that time, the biological age of the child may already be well over 30. The pending time of the petition (7-12 months) will be deducted from it, but that is a drop in the ocean.

What should Indians and Chinese do - a separate chapter. There are strategies, and they work.

Cross-chargeability to the spouse's country if she was born in Russia or another non-backlogged country. Upgrade to EB-1A if the profile allows. EB-5 self-petition if there is $800,000 for investment in a TEA area. A separate immigration base for the child himself - his own H-1B, F-1, O-1, or marriage to a U.S. citizen.

More details in the section “Protection Strategies”.

Scenario 3: You are a U.S. citizen and file I-130 for your child

The most generous CSPA regime. Here, another section of the law works - INA 201(f)(1), 8 U.S.C. § 1151(f)(1).

The child's age is frozen on the day of filing I-130. Not approval. Not visa issuance. Not interview. On the day USCIS received your form.

If on that day the child was under 21 and is unmarried - he is protected forever. USCIS can consider the petition for 3 years, then wait another 2 years for I-485, and during all this time the child can biologically be 24 - it doesn't matter. By law, he remains a "child."

There is one condition: do not marry before receiving the green card. Marriage kills the immediate relative status, and this is irreversible.

No formula. No pending time. No one-year rule. Just the date of filing I-130.

Scenario 4: You are an LPR and file I-130 for your child under F2A

An intermediate scenario. You are still a green card holder, but not a U.S. citizen.

Here, the CSPA formula + one-year rule applies. That is, as in employment-based categories: age will freeze only when the petition is approved and it is your turn according to the bulletin. Pending time will be deducted. The child will have 1 year to file his DS-260 / I-485.

But there is a bonus. If you naturalize (get a U.S. passport) while the child is still "small" under the CSPA formula - the petition automatically converts to Immediate Relative. And then Scenario 3 applies, with all its generosity.

In two federal circuits, courts have additionally ruled that upon naturalization, USCIS must use CSPA-adjusted age, not biological age. These decisions are Tovar (9th Circuit - California, Nevada, Arizona, etc., 2018 ruling) and Cuthill (2nd Circuit - New York, Connecticut, 2021 ruling). The 1st Circuit (Maine, Massachusetts, New Hampshire, Rhode Island, Puerto Rico) joined them - the ruling in Teles de Menezes v. Rubio in 2025, and the 10th Circuit (Colorado, Utah, etc.) - the ruling Dekovic v. Rubio in March 2026.

Outside of these four circuits, the issue requires separate verification of controlling jurisdiction and current DOS/USCIS practice - the application of CSPA-adjusted age upon the naturalization of a parent outside Tovar/Cuthill/Teles de Menezes/Dekovic is not uniform. More details in the section on case law.

Quick algorithm for checking CSPA age in 30 seconds

If you don't have time to read the article, here is the algorithm. It will cover 90% of cases.

Step 1. What is your category and where are you located

By category. If you are applying for a green card through employment - EB-1A (extraordinary ability visa), EB-2 NIW, regular EB-2, EB-3 - proceed to Step 2. If you are an LPR (with a green card) and filing an I-130 for a minor child under F2A - you also proceed to Step 2, the formula is the same.

By location. Most readers of this article are outside the USA (Russia, Belarus, Ukraine, Kazakhstan, Armenia, Georgia, EU, etc.) and are filing the petition from their country. After approval, they will receive an immigrant visa at the U.S. consulate through consular processing: paying fees at NVC + submitting DS-260 on the CEAC portal + interview at the consulate. If you are already in the USA in some non-immigrant status (O-1, H-1B, L-1, F-1) - you can go through adjustment of status (AOS) by filing I-485 without leaving. The CSPA formula for the child's age is the same in both cases, but the "one-year rule" (Step 4) is fulfilled by different actions.

Rare scenarios (U.S. citizen with I-130 for a child under IR-2, asylum/refugee derivative, DV lottery) - see detailed case breakdown above.

Step 2. Visa Bulletin

Open travel.state.gov/visa-bulletin, current month, section "EMPLOYMENT-BASED" or "FAMILY-SPONSORED". Table "Final Action Dates". Find your row (category) and column (country).

In the cell, the letter C (Current) means that the State Department currently has enough visas for all applicants in your category and country, and there is no queue to wait. Immediately after the petition is approved, you can submit DS-260 or I-485 for the green card. And the child's age will freeze on the day the I-140 / I-130 is approved.

If there is a date in the cell (for example, "01JUL2014") - this means that the State Department currently does not have enough visas for all applicants, there is a queue, and they are currently processing only those who filed the petition before this date. If your petition was filed later, you will need to wait until this date in the bulletin catches up with your priority date (the date of filing). Only then can you submit DS-260 / I-485, and at that moment the child's age will freeze.

Step 3. Formula

CSPA age = biological age of the child on the date of visa availability minus the time taken to process the petition.

Visa availability is the later of the two dates: either the approval of your petition or the first day of the month when the cell became C (or the date approached your priority date).

Processing time - from Receipt Date to Approval Date.

Less than 21 - the child is protected. More than 21 - aged out, proceed to the section on strategies.

Step 4. One year

After the age is frozen - 12 months for the child's own application.

In the USA - I-485 for 1,440 dollars (1,375 when filed online). Abroad - DS-260, or payment of NVC fee 325 dollars for each applicant, or I-864 review fee 120 dollars for the family (one payment for the entire family unit) with the child's name on the list of dependents (I-864 is the Affidavit of Support, a financial support obligation from the sponsor), or I-824 (request to USCIS to forward the approved petition back to NVC, for example when the parent has already adjusted in the USA, and the child remains abroad).

The parent's application for the child does not provide protection. The child must have a separate application in their name.

Step 5. Premium Processing if close

If the child is over 19 and the country is current - do not skimp on Premium Processing for I-140. 2,965 dollars turns 6-15 months of waiting into 15 business days (for EB-1A) or 18-26 months into 45 business days (for EB-2 NIW). The less time the petition "hangs" in USCIS, the less the biological age of the child at the moment of freezing. This is the insurance against aged out.

The main myth about freezing age: "I filed a petition, so the child is protected"

The most common question during consultations sounds something like this: "I filed an I-140 in 2022, my daughter was 18. Does that mean her age is frozen at 18, and she is now protected?" The answer is no, and this is the most dangerous misconception in CSPA. Because of it, children are lost in family applications.

Let’s repeat: filing a petition does not freeze age, nor does the Receipt Notice. Even the approval of the I-140 itself does not always freeze age. Age is frozen only at the moment when immigrant visa becomes available for the family. What this means in simple terms will be explained right now.

What does "visa available" mean in simple terms

To obtain a green card, two things must happen simultaneously.

First - an approved petition. I-140 for work, I-130 for family.

Second - the appropriate queue in the Visa Bulletin.

The Visa Bulletin is a table that the State Department publishes every month on travel.state.gov. The columns represent countries: separately for India, separately for China, separately for Mexico, separately for the Philippines, and one large column "All Chargeability Areas" for all others. The rows represent categories: EB-1, EB-2, EB-3, F2A, F2B, and so on.

In the cells, there are either dates or the letter C.

C (Current) means that the State Department currently has enough visas for all applicants in your category and country. There is no need to wait in line: immediately after the petition is approved, you can submit DS-260 or I-485 for the green card itself.

A date (for example, "01JUL2014") means that there are currently not enough visas for everyone, and the State Department is processing only those who filed their petition before this date. If your petition was filed later, you will have to wait until this date in the bulletin moves forward and catches up with yours.

Russia, Belarus, Ukraine, Kazakhstan, Armenia, and Georgia fall into the "All Chargeability Areas" column. In it, for EB-1A and EB-2 NIW in May 2026, there was a C; in the October 2026 bulletin only EB-1 keeps the C, while EB-2 (NIW included) has a Final Action Date of January 1, 2025. This means that for a Russian in EB-1A, the visa becomes available at the moment of I-140 approval - and at that same moment, the child's age is frozen.

For India and China, everything is different - in the October 2026 bulletin their cells for EB-2 and EB-3 show dates many years back (EB-2 India - November 1, 2013, EB-2 China - October 1, 2021). You have the I-140 approval in hand, but the visa has not yet reached you, and the child continues to age biologically.

A little detail about the two tables

If you open the Visa Bulletin, you will see not one table, but two: "Final Action Dates" and "Dates for Filing."

This story is separate and generally boring.

In short: from August 15, 2025, for CSPA, only Final Action Dates are considered. The second table (Dates for Filing) is needed for another question - whether you can already submit I-485. The child's age is not counted according to it.

From February 2023 to August 2025, a different rule was in effect (based on the more favorable table), but the Trump administration rolled it back. Pending I-485 applications submitted before August 15, 2025, are considered under the old favorable policy. All new ones are under the new strict one.

More details in the section about policy 2023-2026.

What does "age frozen" mean

CSPA does not make a child eternally 18 years old. It does not stop time.

It allows you to subtract from the biological age at the moment of visa availability the time that the petition "hung" in USCIS for consideration.

If the result is less than 21, and the child submits their I-485 or DS-260 within a year - they are protected, and will receive the green card along with their parents.

If the result is 21 or older - aged out, and the green card through the parent’s petition is lost. They will then have to look for another door: F2B after the parents' naturalization (this is the family category for adult unmarried children of green card holders - the wait time for most countries is about 7 years, for Mexico and the Philippines 20+), their own EB petition, F-1, marriage to a U.S. citizen.

The text of the law on this rule sounds dry, but it reads unambiguously.

USCIS, public page about CSPA
«To benefit from CSPA as an alien applying for family preference (including VAWA self-petition), employment-based preference, or a DV, you must seek to acquire lawful permanent resident status within 1 year of when a visa becomes available.»
The key phrase is - becomes available. Not the date of filing, not the date of approval, not the date of the interview. This is the moment when both the petition is approved and the priority date is current according to the bulletin. USCIS Policy Manual, Volume 7, Part A, Chapter 7.

Myth #2: “I-140 was approved quickly, so we won”

This is the second dangerous myth, and it is counterintuitive.

It seems logical: the faster USCIS processes the petition, the better. Premium Processing in 15 business days, and off we go. Sometimes this is true, sometimes it is not: in backlogged categories (India, China in EB-2 and EB-3) quick approval works against the child.

The logic is this. Pending time is the only “gift” from CSPA. These are the months that are deducted from the biological age of the child at the moment of freezing. The longer the petition “hung” in USCIS, the more can be deducted.

A specific example. EB-2 India, the child is 17 years old at the time of filing I-140.

Scenario A: I-140 was approved in 7 months. After 11 years the priority date is current. Biological age 28 years, minus 7 months pending = CSPA-age 27 years 5 months. Aged out catastrophically.

Scenario B: I-140 got stuck for 2 years in RFE and correspondence. After 11 years the priority date is current. Biological age 28 years, minus 24 months pending = CSPA-age 26 years. Still aged out. But less.

No one wishes for an RFE on purpose. But the logic here is this: in backlogged categories, the speed of I-140 for CSPA does not matter, because the main bottleneck is the bulletin. And it does not depend on Premium Processing.

Premium Processing only helps where the country is current. Russia, Belarus, Ukraine, Kazakhstan, Armenia in EB-1A - that's their case (EB-2 NIW was current from April through September 2026, and the October 2026 bulletin sets its Final Action Date at January 1, 2025). There, after approval, you can immediately file I-485 / DS-260, and the child will manage to freeze their age before turning 21.

In EB-2 India, for $2,965 you are not buying insurance, but simply an earlier stamp of Approval Notice for the same position in a 12-year queue.

Freezing Age: When Does It Actually Happen (Complete Table)

A large summary table - directly answers the initial question: “when I filed the petition / received Receipt / was approved / filed DS-260 / passed the interview - is the age already frozen?”

Main confusion. "Age is frozen at the date of visa availability" - this is a formal rule. In practice, for backlogged categories (EB-2/EB-3 India and China) this often means the date of approval of I-140, because the petition was approved after 12-18 months, while the priority date will become current many years later. And all this time the child biologically ages, while the pending time of the petition (which has already been approved) no longer increases.

Policy 2023-2026: how the rules have changed and what is currently in effect

If you have no time to read: what is currently in effect (May 2026). For calculating CSPA age, USCIS uses only the Final Action Dates (Chart A) of the visa bulletin. This rule came into effect on August 15, 2025, along with Policy Alert PA-2025-15. Applications filed before this date are considered under the more favorable old policy (Dates for Filing). Details and transitional scenarios are below.

What is the visa bulletin and why are there two tables. The U.S. Department of State (DOS) publishes the Visa Bulletin every month.

The bulletin has two tables:

• Final Action Dates (Chart A) - the date when the visa can actually be approved. This is the "hard" queue.
• Dates for Filing (Chart B) - the date by which an application can be submitted (but the final decision will come later). This is the "soft" queue, usually ahead of Chart A by months or years.

USCIS decides every month which chart to use for accepting I-485 - sometimes Chart A, sometimes Chart B. This decision is published on the USCIS Adjustment of Status Filing Charts page.

Over three years, USCIS's policy on CSPA has changed three times. Below is the timeline of these changes and who they affect. If you have a new case in 2026, the main rule is simple: look at Chart A.

February 14, 2023 - August 14, 2025: PA-2023-02 (Dates for Filing)

USCIS Policy Alert PA-2023-02 from February 14, 2023 allowed the use of Chart B (Dates for Filing) if USCIS was accepting I-485 using this chart that month. For Indians and Chinese in EB-2/EB-3, this often meant a freeze on age for years earlier.

USCIS, February 14, 2023 “USCIS now considers a visa available for CSPA age calculation purposes at the same time it considers a visa immediately available for accepting and processing the adjustment of status application.” Since February 2023, USCIS synchronized the moment of CSPA freeze with the moment when I-485 can already be filed. Before this, there was an absurd situation: one could file I-485 using Chart B, but the child's age was calculated using Chart A - the child could age out between filing and final decision. Source: USCIS Newsroom Alert, February 14, 2023.

August 24, 2023: PA-2023-22 - extraordinary circumstances bridge

USCIS Policy Alert PA-2023-22 from August 24, 2023 announced that the mere fact of the policy change on February 14, 2023 is considered an extraordinary circumstance for those who missed the 1-year window before the change. This allowed families whose child "aged out" under the old FAD policy to refile I-485.

Important: PA-2023-22 was revoked on August 15, 2025, simultaneously with the reversal to Final Action Dates. However, the broad doctrine of extraordinary circumstances from Matter of O. Vazquez and from PA-2024-23 continues to apply.

September 25, 2024: PA-2024-23 - sought-to-acquire and retrogression

USCIS Policy Alert PA-2024-23 from September 25, 2024 codified the interpretation of Matter of O. Vazquez - this is a precedent decision by the BIA (Board of Immigration Appeals, the highest administrative body in immigration matters) from 2012 that established how to satisfy the sought-to-acquire requirement:

• If a visa was available for less than 1 year, and the applicant was unable to file I-485/DS-260 due to extraordinary circumstances - the sought-to-acquire requirement is considered met.
• If retrogression occurred during the 1-year window, and the applicant was unable to file - CSPA age can be calculated based on the initial date of availability (not the subsequent one when the priority date is again current).

What is considered extraordinary circumstances: serious illness, natural disasters, military actions, justified mistakes by a previous attorney, prolonged government delays beyond the applicant's control. Source: USCIS Updates Policy Guidance for the «Sought to Acquire» Requirement.

Reversal on August 15, 2025: USCIS returned to Final Action Dates

Under the Trump administration, USCIS announced Policy Alert PA-2025-15 dated August 8, 2025, effective August 15, 2025. The essence is a return to only Final Action Dates (Chart A).

USCIS, Policy Alert PA-2025-15 “a visa becomes available for the purposes of Child Status Protection Act age calculation based on the Final Action Dates chart of the Department of State Visa Bulletin… for any application filed on or after August 15, 2025.” The exact formula from USCIS is the later of these 2 dates: the later of (a) the petition approval date and (b) the first day of the current month per Chart A. A literal quote from the USCIS public CSPA page.

What changed on August 15, 2025.

• USCIS again uses only Chart A (Final Action Dates) for CSPA age calculation.
• Applies to all applications and CSPA requests filed on or after August 15, 2025.
• Pending applications filed before August 15, 2025, continue to be processed under the policy of February 14, 2023 (Dates for Filing).
• USCIS justification: alignment with the Department of State, which through 9 FAM 502.1-1(D)(4) has always used Final Action Dates.

Three transitional scenarios: who falls under which regime

After the reversal on August 15, 2025, applicants can be divided into three groups. The differences are strict - they determine whether you lose protection or not.

1. I-485 already pending at USCIS before August 15, 2025

The case continues to be processed under the more favorable policy PA-2023-02 (Dates for Filing). If you fixed the child's age earlier per Chart B - this protection remains. This is the most protected group.

2. I-485 filed on or after August 15, 2025

The new strict policy PA-2025-15 applies - only Chart A (Final Action Dates). Chart B no longer works for CSPA. This is the largest group of new applicants.

3. Priority date was current per Chart B before August 15, 2025, but I-485 was NOT filed

THE MOST FRAGILE CASE. If your priority date was current per Chart B in the window from February 2023 to August 2025, but you did not file I-485 then - the transitional rules do not protect you, and USCIS now considers your CSPA age per Chart A. There are two further options. If per Chart A the child is still under 21 according to the CSPA formula - there are no problems, file under the new rules.

However, if per Chart A they have already aged out - then extraordinary circumstances may be an argument, but not an automatic rescue. USCIS requires you to show that the circumstances were not created by you, directly affected the missed deadline, and the delay was reasonable. Immediately consult an immigration attorney.

If you are in group 3 - do not panic, but do not delay. First, gather documents explaining why you did not manage to file I-485 in the window from February 2023 to August 2025. Any serious reason (illness, death in the family, previous attorney's mistake, confusion due to policy changes) may be accepted as extraordinary circumstances - and then USCIS will recalculate the child's CSPA age according to the more favorable old formula. The doctrine from Matter of O. Vazquez and from PA-2024-23 applies. Decide with an immigration attorney - the case will not resolve itself.

What USCIS itself says and how immigration lawyers understood it

The State Department in Policy Alert PA-2025-15 formulates exactly one rule (quote in English, translation immediately after it):

USCIS, August 8, 2025
“USCIS will use the Final Action Dates chart of the Department of State Visa Bulletin to determine when a visa becomes available for purposes of calculating an applicant's age under the Child Status Protection Act.”
In translation: USCIS uses the Final Action Dates table of the State Department visa bulletin to determine when a visa becomes available for calculating CSPA age. In simpler terms: everything you remember about Chart B and earlier freezes - forget it, for CSPA age now only Chart A is considered. And Chart A for backlogged countries (India, China in EB-2/EB-3) is always years later - and the risk of aging out has sharply increased.

Source of the quote: USCIS Newsroom Alert, August 2025.

Major immigration firms also assess this change: Fragomen calls the reversal “more restrictive”, Boundless writes “fewer applicants will qualify for CSPA protection”, Murthy Law Firm directly states the increased risks for Indian EB families, WR Immigration (Wolfsdorf Rosenthal) warns of the real risk of family separation in EB-2 India, and Cyrus Mehta calls USCIS's justification (“synchronization with DOS”) a formal pretext - the anomaly between USCIS and DOS existed in 2023 as well, when it was changed in a more generous direction, and at that time no one rushed to eliminate it.

The main practical conclusion from all these assessments is the same: the new policy hits hardest on families from countries with long backlogs - India and China in EB-2 and EB-3. For Russians, Belarusians, Ukrainians, and other non-backlogged countries in EB-1A and EB-2 NIW, the reversal has almost no impact, because their queue was already open under both tables.

Trend for 2026: interpretation tightens even further

In March 2026, Cyrus Mehta published an article, in which he pointed out that USCIS under Trump 2.0 now reads the phrase “visa available” more strictly than before. Previously, many practicing attorneys believed that concurrent filing (simultaneous submission of I-140 and I-485) itself protects the child's age. Now USCIS says: no, the age will not freeze until (a) I-140 is approved and (b) Chart A is current. Whatever may lie in one envelope.

Mehta shows with a specific case what this means: a child whose age logically should have frozen on October 20, 2020, upon concurrent filing of I-140 + I-485, under the new interpretation freezes only on October 1, 2025 - when I-140 is finally approved, and by that time biologically he will be much older than 21. That is, a case that the family considered protected for six years turns into aging out.

According to Mehta, this position contradicts the very text of the law INA 203(h)(1)(A): the law does not state anywhere that the petition must be approved for the child's age to be fixed. Mehta calls this “rendering CSPA virtually ineffective” - that is, “effectively makes the law non-functional for most EB families.” This is an active area of litigation for 2026: lawsuits, mandamus, and attempts to challenge such an interpretation through Loper Bright are expected (see section on case law).

CSPA Formula: step-by-step calculation

The text of the law - INA § 203(h), 8 U.S.C. § 1153(h) (full text at law.cornell.edu):

“the age of an alien… shall be determined by using the age of the alien on the date on which an immigrant visa number becomes available for such alien, but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability, reduced by the number of days in the period during which the applicable petition described in paragraph (2) was pending.”

What this means: the formula from this paragraph of the law looks like this:

CSPA age = (biological age on the date of visa availability) − (days pending petition)

where:

• visa availability = the later of the dates: (a) the approval date of the underlying I-140/I-130, (b) the first day of the month when the priority date is current according to Chart A (Final Action Dates) - after August 15, 2025;
• pending petitions = from Receipt Date (USCIS accepted the documents) to Approval Date (approval).

If the result is less than 21 years, and the child filed I-485 or DS-260 within 1 year, they remain eligible as a derivative beneficiary.

Steps for Calculation

1. Find the Receipt Date and Approval Date of the parent’s I-140 (or I-130)

This information is available in the Notices I-797C (Receipt) and I-797 (Approval). Pending time = the difference between them in days.

2. Determine the visa availability date

This is the later of the two dates: (a) Approval Date of the petition, (b) the first day of the month when the priority date is current according to Chart A of the visa bulletin.

3. Calculate the biological age of the child on the visa availability date

In years, months, and days.

4. Subtract pending time

Biological age minus pending time = CSPA age.

5. If CSPA age < 21 - there is protection, if I-485 or DS-260 was filed within 1 year

If CSPA age ≥ 21 - the child aged out and must seek other options.

Sought to acquire: 1 year to file DS-260 or I-485

Age freezing is only half of the equation. The other half is the obligation to file an immigration application within 1 year after visa availability.

Sought to acquire - specific actions with exact figures:

• Filing Form I-485 (Adjustment of Status) - the main trigger for those in the U.S. Cost: 1,440 USD for the form + biometrics (according to the 2026 fee schedule).
• Filing Form DS-260 (Online Immigrant Visa Application) through CEAC (Consular Electronic Application Center, ceac.state.gov - the online portal of the State Department for submitting immigration forms) - for consular processing abroad. The form itself is free, but the immigrant visa fee must be paid first.
• Payment of the immigrant visa fee at NVC: 325 USD for each family member. This is a separate payment, made after the petition approval and before filling out DS-260.
• Payment of I-864 Affidavit of Support review fee: 120 USD for one family unit (per family group).
• Filing Form I-864 with the child's name on the list of dependents.
• Filing Form I-824 (Application for Action on an Approved Application) on behalf of the child. Cost: 590 USD.
• Other actions + extraordinary circumstances, proven by documents (see Matter of O. Vazquez).

What does NOT count as sought to acquire:

• Consultation with a notario or non-attorney.
• Intent to file.
• Unsigned or unpaid form.
• Parent's DS-260 (principal) - does NOT count for the child (there is a separate block about this below).

Main mistake: filing I-485 / DS-260 by the principal does NOT protect the derivative child. Each child must have their own filing - a separate I-485 (if in the U.S.) or a separate DS-260 (if abroad).

An example of a typical fatal mistake. Father Ivanov in the U.S. filed I-140 EB-1A with a concurrent I-485 for himself - but forgot to file I-485 for his daughter, who is also in the U.S. A year later, the father is approved for a green card, and the daughter ages out. CSPA protection for the daughter does NOT activate because SHE did not file I-485 within the 1-year window.

A similar trap for consular processing. The State Department explicitly states in 9 FAM 502.1-1(D)(6): the parent's DS-260 as the principal applicant does NOT count for the derivative child. A separate DS-260 specifically for the child is required. This is one of the most costly mistakes in consular processing.

The main rule: within 1 year after visa availability, the child must have a separate dated filing in the USCIS or DOS system. Source: USCIS Policy Manual, Vol. 7, Part A, Chapter 7.

Matter of O. Vazquez, 25 I&N Dec. 817 (BIA 2012)
«An alien may satisfy the 'sought to acquire' provision of section 203(h)(1)(A) of the Immigration and Nationality Act by filing an application for adjustment of status or by showing that there are other extraordinary circumstances in the case, particularly those where the failure to timely file was due to circumstances beyond the alien's control.»
The BIA in Matter of O. Vazquez established two paths: either file the form or prove extraordinary circumstances. Intent and consultations do not work.

Matter of O. Vazquez (BIA 2012), in the sense of the decision: one year is a significant period during which the applicant can find a lawyer, gather the necessary documents, and file the form. Congress intentionally provided a full year (not 30 or 60 days) because it considered this time sufficient for reasonable preparation.

What this means: The BIA notes that Congress intentionally provided a whole year - not 30 or 60 days. This is "significant time" during which the applicant must find a lawyer, gather documents, and file the form. Therefore, the standard for extraordinary circumstances is high: "did not manage" or "did not know" does not work.

What is considered extraordinary circumstances

A list from the USCIS Policy Manual after the September 2024 update:

• Serious illness of the applicant or a close relative.
• Natural disasters, military actions, evacuation.
• Legal errors by a previous attorney (substantiated by documents and proof that the applicant acted in good faith).
• Long delays by the government that are not the applicant's fault.
• Pandemic-related circumstances (considered on a case-by-case basis, not automatically).

Source: USCIS Newsroom Alert on sought-to-acquire.

Which categories does CSPA apply to

CSPA does not apply equally to all categories. Basic breakdown:

Immediate relatives - a separate story. If a parent is a U.S. citizen and files an I-130 for a child under 21 - the child's age is frozen on the date of filing I-130 (not approval). This is INA 201(f), and there is no pending time subtraction formula. This is the most generous CSPA mode. Applicable only to immediate relatives, not to employment-based.

Adoption (Hague / orphan) - NOT a standard CSPA. If a child is adopted through international adoption (Hague Adoption Convention or orphan process), the standard CSPA formula does not apply. What is Hague / orphan in simple terms:

• Hague adoption - adoption from a country that has signed the Hague Convention on Intercountry Adoption (about 100 countries). The I-800 form is used.
• Orphan adoption - adoption from a country not part of Hague (the I-600 form). Since 2013, Russia does not allow international adoption, so this is a rare topic for the Russian-speaking audience.

In these scenarios, age is assessed according to special rules of the adoption framework - usually, the child must be under 16 years old at the time of filing the petition (with exceptions for siblings up to 18). Many families lose money and time on the mistaken assumption that "CSPA saves everyone." Source: USCIS - Special Immigrants and CSPA and INA 101(b)(1)(F)/(G), 8 U.S.C. § 1101.

Scenarios by categories: EB-1A, EB-2 NIW, EB-3

EB-1A primary (talent visa)

As of the publication date (May 2026), EB-1 for most countries except India and China remains current in the visa bulletin (check current dates at travel.state.gov). This means:

• If EB-1 is current at the time of approval of I-140 → freeze occurs on the date of approval of I-140.
• Pending time is still deducted.
• Sought to acquire must occur within 1 year after approval.

Example (EB-1A citizen of the Russian Federation, after August 2025):

• I-140 (EB-1A) filed: March 1, 2024.
• I-140 approved: December 1, 2024 (pending time = 275 days ≈ 9 months).
• EB-1 for Russia is current on this date → freeze on December 1, 2024.
• Daughter born: January 1, 2005. Biological age on December 1, 2024 = 19 years 11 months.
• CSPA age = 19 years 11 months − 9 months = 19 years 2 months.
• Daughter must file DS-260 (if abroad) or I-485 (if in the USA) by December 1, 2025.

For Indians, EB-1 (where retrogression is currently for years) carries the same risks as EB-2/EB-3.

EB-2 NIW

NIW does not change the logic of CSPA - it is the same EB-2 category, the same priority date, the same formula. Features of NIW:

• Self-petition, does not depend on employer.
• When changing jobs, AC21 portability is not needed (this rule is from the American Competitiveness in the 21st Century Act, INA § 204(j) - the ability to change employers without losing pending I-485 and priority date, if I-140 has been approved for 180+ days or I-485 is pending for 180+ days) and Form I-485 Supplement J (a confirmation form that the job offer is still valid at the time of adjudication).
• If a parent is the primary applicant under NIW and the country is current → CSPA freeze on approval of I-140.

EB-2 / EB-3 (especially India, China)

Here lies the main risk. The queue for Chart A for EB-2 India and EB-3 India spans decades. After the reversal in August 2025, the situation sharply deteriorated.

Example (EB-2 India, after August 2025, typical case):

• I-140 receipt: January 1, 2020.
• I-140 approval: July 1, 2021. Pending time = 547 days (1 year 6 months).
• Daughter born: March 1, 2003.
• Chart A for EB-2 India current: December 1, 2025.
• Biological age on December 1, 2025: 22 years 9 months.
• CSPA age = 22 years 9 months − 1 year 6 months = 21 years 3 months.
• AGED OUT. No protections.

The same case under the policy before August 2025 (DFF era):

• If Chart B became current on December 1, 2023, biological age = 20 years 9 months.
• CSPA age = 20 years 9 months − 1 year 6 months = 19 years 3 months.
• Protected. Daughter has time to file I-485/DS-260 within a year.

The difference is two years in the calculation of CSPA age. For the family, this is the difference between "received green cards together" and "daughter must seek a separate path."

Especially for O-1: what about the child in O-3

This is the most painful practical issue for families with O-1 talent visas, and most petitioners overlook it. A child nonimmigrant in O-3 status (dependent on the O-1 parent) is not protected by CSPA regarding nonimmigrant status.

O-3 expires on the day of the child's 21st birthday - no formulas, no extensions, no CSPA.

• CSPA only protects the right to a green card (the right to be a derivative beneficiary in I-140 → I-485 / DS-260).
• CSPA does NOT extend O-3 status. Exactly on the day of the 21st birthday, O-3 loses its validity.
• The same applies to H-4 (dependent status of the H-1B parent), L-2 (dependent L-1), E-3D (dependent E): dependent child status in all these categories ends on the day of the 21st birthday. CSPA does not extend nonimmigrant status.
• The solution is to transfer the child to F-1 student status (or another suitable nonimmigrant status) in advance as a bridge while I-485 has not yet been filed or is pending.

Typical scenario O-1 → EB-1A with a 20-year-old child in O-3

• Father in O-1, son Mark in O-3, he is 20 years 0 months on January 1, 2026.
• Father files I-140 EB-1A with Premium Processing on January 15, 2026.
• I-140 approved on February 28, 2026 (pending = 1.5 months).
• EB-1 for Russia current → concurrent I-485 for father and Mark filed on February 28, 2026.
• Biological age of Mark on February 28, 2026: 20 years 2 months.
• CSPA age = 20 years 2 months − 1.5 months = 20 years 0.5 months. Protected.

Biologically, Mark will turn 21 on January 1, 2027. Without a filed I-485, his O-3 status would expire on that day. Along with I-485, it is necessary to file Form I-765 (application for work authorization) and Form I-131 (application for advance parole). After their approval - usually within 4-8 months - Mark will receive EAD (Employment Authorization Document) and AP (Advance Parole, permission to re-enter the U.S. while waiting for I-485). With these two documents, he will be able to legally live, work, and travel while I-485 is being processed. CSPA preserves his right to the green card itself until the final decision by USCIS.

The main lesson of this scenario. If you have O-1 and a child in O-3 close to 21, it is not so much about pure CSPA math (in the current category, the CSPA age at the moment of freeze is still close to the age at the moment of filing - pending time is deducted), but rather three parallel things. First - to file your own I-485 for the child as soon as possible to initiate the EAD/AP bridge.

Second - to reduce the risk of retrogression in the bulletin between filing and freeze. Third - to keep the child in legal status while the green card is being prepared (O-3 expires at 21). Premium Processing (15 business days for EB-1A) speeds up the approval of I-140 and accelerates the entire chain. Without it, I-140 EB-1A hangs for 6-15 months, and these are months during which O-3 has already expired, and the green card has not yet arrived.

Consular processing (DS-260) vs Adjustment of Status (I-485)

The logic of "sought to acquire" differs slightly depending on where the child is located.

Summary table AOS vs CP - where the risks are

Main operational difference. In AOS, you have one instance and one document - filed I-485, that's it. In consular processing - two instances (USCIS and DOS), and any of the payments or submissions can count as sought-to-acquire. But there are also more gaps: it's easy to forget one step and lose protection. If the child is abroad and close to 21 - document every action in writing (dated NVC receipts, DS-260 confirmations from CEAC).

If the child is abroad, parent in the USA

Scenario: parent adjusts through I-485 in the USA, child remains abroad and will go through CP.

• The parent cannot file I-485 for the child - the child is not in the USA.
• Sought to acquire for the child = their DS-260 after the priority date is current.
• Time for DS-260 - 1 year after visa availability.
• NVC may delay the invitation letter - track it through CEAC.

Is being Documentarily qualified in NVC considered sought?

No, it is not considered. Sought-to-acquire is specifically the filing of DS-260 (Part I). Documentarily qualified is a status that NVC assigns only after DS-260, when the documents are verified. However, if DS-260 is filed within 1 year, subsequent documentation processing may take longer without losing protection.

Can DS-260 be filed in advance?

No. NVC sends the invoice/welcome letter only after the petition is approved and the priority date is current. Without the NVC invoice - DS-260 cannot be filled out. This is another reason why it is important to track the visa bulletin and not wait for "them to send everything themselves."

Calculations in numbers: before and after the reversal of 2025

Example 1: EB-2 NIW citizen of Armenia, child in Russia

• Petition I-140 NIW, Receipt: February 1, 2024, Approval: November 15, 2024 (pending = 288 days).
• EB-2 Armenia (Rest of World country) current at the time of approval.
• Visa availability = November 15, 2024.
• Son born: March 1, 2005. Biological age on November 15, 2024 = 19 years 8 months.
• CSPA age = 19 years 8 months − 9 months = 18 years 11 months.
• DS-260 must be filed by November 15, 2025.

Example 2: EB-1A citizen of Belarus

• Petition I-140 EB-1A, Receipt: June 1, 2024, Approval: November 1, 2024 (pending = 153 days).
• EB-1 Belarus current.
• Visa availability = November 1, 2024.
• Daughter born: December 1, 2003. Biological age on November 1, 2024 = 20 years 11 months.
• CSPA age = 20 years 11 months − 5 months = 20 years 6 months.
• DS-260 must be filed by November 1, 2025. Protected in cut-off.

Example 3: EB-3 India (shows policy differences)

• Petition I-140 EB-3, Receipt: March 1, 2018, Approval: June 1, 2019 (pending = 457 days ≈ 15 months).
• Son born: January 1, 2005.
• Chart A for EB-3 India current: February 1, 2026 (biological age = 21 years 1 month).
• CSPA age by policy from August 2025 = 21 years 1 month − 15 months = 19 years 10 months. Protected, but the window is only open now.
• If the DFF policy had been in effect, and Chart B became current earlier (let's say in March 2024) → biological age 19 years 2 months → CSPA age = 17 years 11 months. Protected with a significant buffer.

Protection Strategies: Premium Processing, cross-chargeability, upgrade

If the child is close to 21, CSPA mathematics has three legal levers. All three are regularly applied by practicing immigration attorneys.

Strategy 1: Premium Processing for I-140

USCIS offers Premium Processing for I-140. Timelines and costs depend on the category:

• EB-1A, EB-1B: 15 business days instead of the standard 6-15 months (depends on Service Center: Texas SC ~4-9 months, Nebraska SC ~6-15 months). Cost: 2,965 USD.
• EB-2 NIW: 45 business days instead of the standard 18-26 months. Cost: 2,965 USD.
• EB-2 PERM, EB-3: 45 business days instead of the standard 8-12 months. Cost: 2,965 USD.

According to the USCIS fee schedule for May 2026.

When Premium Processing helps CSPA, and when it does not.

• Helps, if your category and country are current in the visa bulletin (EB-1A for Russia, Belarus, Ukraine, Armenia, and most ROW countries). Quick approval of I-140 → quick visa availability date → quick filing of I-485 → the child manages to "sought to acquire" before turning 21.
• DOES NOT help for backlogged categories (EB-2/EB-3 India, China). There, the speed of I-140 does not matter, because the priority date will become current in years. The pending time of the petition, on the contrary, the longer it is - the more can be deducted from the biological age.

Strategy 2: Cross-chargeability (INA § 202(b))

If the parents are from different countries, the family can be "charged" to the country of the more favorable spouse. Basis: INA § 202(b), 8 U.S.C. § 1152(b).

Example: father born in India, mother - in Russia. By default, the country of chargeability = India (EB-2 India backlog 12+ years). Through cross-chargeability, the family can be charged to Russia (EB-2 ROW current). This turns a hopeless aging-out case into a protected one.

Conditions for application:

• Spouses are legally married at the time of immigrant visa adjudication.
• Both enter simultaneously or the principal is already in the USA as an LPR.
• Indicated in DS-260 / I-485 (field "country of chargeability").

For Indians and Chinese with a spouse from Russia, Belarus, Armenia, Georgia, Ukraine - this is often the only strategy to save the child.

Strategy 3: Upgrade category through interfiling

Transferring priority date from EB-3 to EB-2 NIW or from EB-2 to EB-1A. More details in Reddy Neumann Brown and in the pitfalls section below.

When it is beneficial: if the new category is current before the old one (for example, EB-1A current vs EB-2 India with a queue of 12+ years). The priority date is transferred, the child manages to freeze earlier.

Risk: the new petition has its own pending time, and CSPA is recalculated anew. USCIS explicitly warns: "Transferring to a new basis will result in a new calculated CSPA age… an alien may become ineligible to adjust status as a derivative beneficiary as a result of a transfer request."

Strategy 4: If the child still aged out

• F2B petition after obtaining LPR by a parent - the child enters a new queue (for most countries 7+ years, for Mexico/Philippines 20+ years).
• EB-5 self-petition for the child (if there are financial means - at least 800,000 USD in a TEA area).
• Own EB-1A or EB-2 NIW talent visa for the child - if their profile allows (awards, publications, notable career). More details in our analyses: EB-2 NIW complete guide, EB-1A criteria.
• F-1 student visa as a bridge while preparing their own petition.
• Marriage to a U.S. citizen - a separate path through IR-1/CR-1.
• In the 9th, 2nd, and 10th circuits - an attempt to use Tovar / Cuthill / Dekovic during the parent's naturalization.

Pitfalls of CSPA: marriage, retrogression, concurrent filing trap

1. Visa retrogression. Scenario: priority date became current in November, the child is still under 21 under CSPA → but in January the bulletin retrogressed by years → I-485 not yet filed → CSPA protection is lost.

USCIS position (after Sept 2024): if the visa was available for less than 1 year, the applicant gets a second chance - a new 1-year window when the priority date becomes current again. But CSPA age is recalculated to the new date of availability - which usually makes it worse. If there are extraordinary circumstances, it may be possible to retain the old date of availability for CSPA calculation.

Murthy Law Firm, October 2024 “A derivative child whose age is calculated to be under 21 must have sought to acquire lawful permanent resident status within one year of the parent's priority date becoming available… When a child gets a second one-year period, the CSPA age calculation will be based on the second time the parent's priority date became current.” Murthy Law Firm: in case of retrogression, the second window opens a new CSPA calculation on the new date - the child is biologically older, protection often disappears. The main rule: if the child is close to 21, file I-485/DS-260 on the very first day the priority date becomes current, do not wait.

2. Changing employers / porting I-140 under INA 204(j). If the applicant changes employers through AC21 portability:

• I-140 remains approved (if it was approved for 180+ days or I-485 pending for 180+ days).
• Priority date is retained.
• CSPA age usually does NOT change, because the underlying petition is the same.
• BUT if the new employer files a new I-140 (instead of using portability), this creates a new case with a new pending time - and thus a new CSPA recalculation.

3. Upgrade from EB-3 to EB-2 NIW (or vice versa). This is interfiling / transfer of underlying basis. It creates a new CSPA calculation. It can be beneficial (if the new category becomes current faster), or it may not (if the new petition has a longer pending time).

Reddy Neumann Brown PC “By interfiling into a current employment-based category, it is possible for a family to beneficially leverage CSPA to ensure their child does not age-out.” Reddy Neumann Brown: if the child is close to 21, sometimes it makes sense to upgrade EB-3 to EB-2 NIW (or EB-2 to EB-1A) - the new category becomes current sooner, CSPA freeze will happen faster. But USCIS explicitly warns: “Transferring to a new basis will result in a new calculated CSPA age… an alien may become ineligible to adjust status as a derivative beneficiary as a result of a transfer request.”

4. Child's marriage - a serious risk for derivative status. In most scenarios, marriage terminates the right to be a "child" in immigration, but the effect of divorce depends on the category and timing:

• In F2A, marriage automatically terminates the right to be an F2A-beneficiary, and the petition in her F2A form loses its validity.
• In EB-derivative, marriage also terminates the child's eligibility as a derivative.
• Effect of divorce: in the immediate relative category, the daughter/son of a U.S. citizen must be unmarried at the time of adjudication; in some scenarios, divorce before visa availability may restore child status if the CSPA age is under 21. This is a narrow case and should be addressed with an attorney.
• In F-3 (married children of USC), divorce of the beneficiary triggers a special provision INA 201(f)(3) - the petition is converted to IR.

The main practical rule: until obtaining a green card, the child must remain unmarried. If marriage has already occurred - this is not always the end, but always an urgent conversation with an immigration attorney.

5. EAD/AP on pending I-485 ≠ green light. Children can file I-765 and I-131 concurrently with I-485 and receive EAD/AP after their approval. This allows them to live and work legally, but appearing "protected" from aging out does not mean being protected. However, at the time of final adjudication, if their CSPA age turns out to be > 21 (for example, due to retrogression Chart A), they will be denied. EAD/AP do not automatically convert to LPR.

6. Concurrent I-140 + I-485 after August 2025. Until August 14, 2025 (DFF era), it was possible to file I-140 and I-485 simultaneously (if EB-1 or another current category) and freeze CSPA at the date of filing I-485.

After August 15, 2025 (FAD era), concurrent filing does not guarantee a freeze: USCIS requires that FAD be current at the date of filing I-485 OR approval of I-140 (whichever is later). According to the Trump 2.0 interpretation (see Cyrus Mehta's article, March 2026), even concurrent filing may not protect if I-140 is approved after Chart A has retrogressed.

7. Concurrent Filing Trap. Cyrus Mehta warned in March 2026 about USCIS denials of I-485 filed concurrently with I-140, where the child was under 21 at the time of filing, but over 21 at the time of I-140 approval.

A specific example from practice: a father filed I-140 + I-485 concurrently on January 15, 2026, the child is 20 years and 10 months old. I-140 is approved on April 1, 2026, the child is 21 years and 1 month old. According to the Trump 2.0 interpretation (PA-2025-15) - the visa "becomes available" only on the date of I-140 approval, and at that moment the child is already biologically over 21 by more than the pending time. Denial.

According to Cyrus Mehta, this contradicts the plain text of INA 203(h)(1)(A) - the text of the law does not require that the petition be approved before age freezing. This is an active area of litigation, and lawsuits and mandamus are expected in 2026.

8. DV (Diversity Visa) lottery - special rules. Pending time for DV = (DV selection letter date) − (DV registration start, usually October of the previous year). Pending time is usually 6-7 months.

CSPA age = biological age on the date when DOS can allocate a visa by rank number − pending time.

The main problem with DV: the fiscal year ends on September 30. If the child is aging out close to the end of the year, the sought-to-acquire window may be less than 1 year - it is automatically cut off by the end of the fiscal year. If the visa is not issued by September 30 - everything is lost.

9. Documentation sought-to-acquire - determines the outcome of the motion to reopen. Many CSPA denials are won or lost on one date-stamp in one document. What to keep:

• For AOS: Form I-797C (Receipt Notice I-485) with a clear date - original and scan.
• For consular processing: NVC fee receipt (DS-2001 or confirmation of IV fee payment) with the payment date.
• For I-824: Receipt Notice I-797C on I-824.
• For transfer of basis: a copy of the written request to USCIS with the date of sending and confirmation of receipt (USPS tracking, FedEx receipt).
• For extraordinary circumstances: medical certificates, evidence of legal disability, documents regarding the death/illness of the petitioner - all with dates.

Without these documents, a motion to reopen (Form I-290B) is almost impossible to win. Keep everything at least until the child receives the green card.

Case Law and AAO

Matter of O. Vazquez, 25 I&N Dec. 817 (BIA 2012)

BIA Decision Text. Holding: "sought to acquire" is satisfied by (1) filing a form (I-485 / DS-230 / DS-260) or (2) demonstrating extraordinary circumstances beyond the applicant's control. Consultation with a notario or non-attorney is not considered.

Scialabba v. Cuellar de Osorio, 573 U.S. 41 (2014)

Supreme Court Decision. The Supreme Court 5-4 deferred to the BIA's interpretation in Matter of Wang (2009): only children of principal beneficiaries in the F2A category receive automatic conversion with retention of priority date. For all other aged-out derivatives - no priority date retention. For EB-2/EB-3 derivatives, this means: an aged-out child starts from scratch, the parent's priority date is not transferred to them.

Rodriguez Tovar v. Sessions, 882 F.3d 895 (9th Cir. 2018) and Cuthill v. Blinken, 990 F.3d 272 (2d Cir. 2021)

Both decisions confirm that the adjusted CSPA age applies when automatic conversion to immediate relative occurs upon the parent's naturalization. What this means in simple terms: if an LPR parent (i.e., with a green card, Lawful Permanent Resident) filed for a child under F2A and then became a U.S. citizen (naturalized), the petition automatically converts to Immediate Relative. According to these decisions, on the date of naturalization, USCIS must use the CSPA-adjusted age (subtracting pending time), not the biological age. Applicable in the 9th and 2nd federal circuits. Detailed analysis by Cyrus Mehta on Tovar and Justia on Cuthill.

Expansion: 1st and 10th Circuit (2024-2025)

In 2025, the First Circuit (covering the states of Maine, Massachusetts, New Hampshire, Rhode Island, Puerto Rico) joined the interpretation of Tovar/Cuthill - the decision Teles de Menezes v. Rubio. In March 2026 - Tenth Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming), decision Dekovic v. Rubio - that "age" in INA 201(f)(2) means CSPA-adjusted age, not biological. This means that in these circuits, LPR parents whose children are close to 21 at the time of naturalization can rely on these decisions in disputes with USCIS/DOS. Source: American Immigration Council, CSPA Practice Advisory (Jan. 2025).

AAO non-precedent decisions: what are they and can they be relied upon

AAO is the Administrative Appeals Office (USCIS Administrative Appeals Office). When USCIS denies a petition, the applicant can appeal via Form I-290B, and the AAO reviews it. The AAO issues two types of decisions:

• Precedent decisions - mandatory for all USCIS officers. There are very few of these regarding CSPA.
• Non-precedent decisions - non-mandatory but illustrative. They are published in the USCIS AAO Non-Precedent Decisions Database.

Non-precedent decisions are useful as indicators of how the AAO views similar cases. They are particularly valuable when preparing a motion to reopen after a CSPA denial - if there is a similar case in the database with a positive outcome, it can be referenced in the argumentation. However, they are not binding precedent for other USCIS officers.

2025-2026: new lawsuits and Loper Bright

As of May 2026, there are no major federal decisions reversing the August 2025 changes. Immigration attorneys (including Cyrus Mehta) are calling for a new round of litigation, citing the standard DHS v. Regents of the University of California, 591 U.S. 1 (2020): the agency is required to consider reliance interests when reversing policy. This means USCIS should have taken into account that tens of thousands of families built their immigration strategy based on the 2023 policy.

An additional factor is the Supreme Court's decision Loper Bright Enterprises v. Raimondo, 603 U.S. ___ (2024), which overturned the Chevron deference doctrine (a forty-year judicial doctrine under which courts automatically respected federal agencies' interpretations of ambiguous statutory provisions - that is, USCIS, DOS, IRS, and other agencies could interpret the law in their favor, and courts rarely contested this). Loper Bright (June 2024) overturned it: now courts must derive the "best reading" of the law themselves, rather than taking USCIS at its word.

USCIS in PA-2025-15 specifically justified the reversal through the wording "best reading of INA § 203(h)(1)" - to preemptively protect against potential lawsuits under Loper Bright. Cyrus Mehta and AILA (American Immigration Lawyers Association, the largest professional association of immigration lawyers in the U.S.) argue the opposite: the best reading of the law actually supports the freeze under Chart B or at the time of concurrent filing I-140 + I-485. This is an active area of potential case law through 2026.

Where to Find Primary Sources: Statute, Regulations, USCIS, DOS

U.S. immigration law is structured like a "layered cake": statute (Congressional law) → regulations (agency norms) → policy manual / FAM (instructions for officers) → policy alerts (recent changes) → case law. To verify any statement in this post, consult the sources in this order.

The Law Itself CSPA - Statute (8 U.S.C.)

The statute is the text of the law enacted by the U.S. Congress. Codified in the Code of Federal Statutes (8 U.S.C., section "Aliens and Nationality"). The full text can be accessed at law.cornell.edu (Legal Information Institute, a free academic site of Cornell Law School).

• Public Law 107-208 (CSPA, August 6, 2002) - the original text of the law as a PDF
• 8 U.S.C. § 1151 (INA § 201) - immediate relatives and naturalization conversion (subsection (f))
• 8 U.S.C. § 1153 (INA § 203) - preference categories and CSPA formula (subsection (h))
• 8 U.S.C. § 1154 (INA § 204) - petitions, opt-out for F-2B (subsection (k))
• 8 U.S.C. § 1157 (INA § 207) - refugees, follow-to-join (subsection (c)(2)(B))
• 8 U.S.C. § 1158 (INA § 208) - asylum, derivative children (subsection (b)(3)(B))

Regulations (8 CFR and 22 CFR)

CFR is the Code of Federal Regulations, the norms that federal agencies issue to implement the statute. 8 CFR is the rules of the Department of Homeland Security (including USCIS). 22 CFR is the rules of the Department of State (including consulates and NVC).

• 8 CFR § 204.1(b) - definition of "properly filed and received" for petitions. Explains what date is considered the operational date of filing.
• 8 CFR § 245.1(g)(1) - requirement that the immigrant visa must be "immediately available" at the time of filing I-485.
• 8 CFR § 245.2(a)(5)(ii) - preference AOS cannot be approved until DOS has allocated a visa number.
• 22 CFR §§ 42.51-42.53 - DOS rules on numerical control and priority dates for immigrant visas.

USCIS Policy Manual and Policy Alerts

Policy Manual is a compilation of rules for USCIS officers, publicly available, and updated regularly. Policy Alert (PA) is an announcement of a change in the Policy Manual. Each PA has its own code in the form "PA-YYYY-NN".

• USCIS Policy Manual, Vol. 7, Part A, Chapter 7 - main page about CSPA for AOS cases
• USCIS public CSPA page - simplified explanation for applicants
• Revised Guidance for the CSPA (April 30, 2008) - the first systematic memorandum from USCIS
• PA-2018-05 (May 23, 2018) - formalization of CSPA in the Policy Manual, linking to Final Action Dates
• PA-2023-02 (Feb 14, 2023) - transition to Dates for Filing for CSPA (rescinded in 2025)
• PA-2023-22 (Aug 24, 2023) - extraordinary circumstances bridge (rescinded in 2025)
• PA-2024-23 (Sept 25, 2024) - sought-to-acquire and retrogression, still in effect
• PA-2025-15 (Aug 8, 2025, eff. Aug 15, 2025) - reversal to Final Action Dates, current rule

Department of State - for consular processing

FAM is the Foreign Affairs Manual, instructions for consular officers and NVC. It is similar in format to the Policy Manual at USCIS, but managed by DOS instead of USCIS.

• 9 FAM 502.1-1(D) - section on CSPA in DOS practice for consular processing
• DOS Visa Bulletin (monthly) - Chart A and Chart B
• DOS Immigrant Visa Process - step-by-step guide to consular processing

Practical guides from reputable sources

• American Immigration Council - CSPA Practice Advisory (Jan 2025) - the most comprehensive public guide, free of charge
• ILRC - Practice Alert: Updated USCIS Policy on CSPA (Sept 2025) - analysis of the reversal PA-2025-15
• AILA - USCIS guidance on CSPA age calculation - materials from the American Immigration Lawyers Association

10 key takeaways about age freezing under CSPA in 2026

1. CSPA freezes "child status," not literal age

This is a formula + deadline. Never assume a child is "protected" just because a petition has been filed.

2. The freezing date in employment-based cases is NOT the date of filing I-140

It is the later of (a) the date of approval of I-140 and (b) the first day of the current month according to Chart A. This applies to all I-485s filed from August 15, 2025.

3. The February 14, 2023 (Dates for Filing) RULE IS CLOSED

It applies only to I-485s that were already pending at USCIS before August 15, 2025. New filings in 2026 will follow the strict rule of Chart A.

4. Sought-to-acquire deadline of 1 year - no leniency

For AOS, file I-485. For CP, pay the IV fee or file DS-260. Count from the first day of the current month according to Chart A.

5. For O-1 → EB-1A / EB-2 NIW families with a principal from Russia/Belarus

The visa bulletin is generally favorable. The main risk is the speed of I-140. Use Premium Processing, file I-485 concurrently or immediately after approval, and ensure that each child has their own filing in the system within 1 year.

6. For families with a parent from India or China - extreme risk of aging out

Consider cross-chargeability to the spouse's country, EB-1A self-petition for the principal, or a separate immigration basis for the child.

7. O-3 status itself is NOT protected by CSPA

O-3 expires on the day of the 21st birthday. CSPA preserves the right to a green card, not nonimmigrant status. Plan ahead for F-1 or another bridge.

8. Immediate Relative - fundamentally different regime

For I-130 from a U.S. citizen, the child's age is fixed on the day of filing I-130. No formula, no 1-year deadline. Do not confuse with preference categories.

9. Document everything and file quickly

CSPA jurisprudence is unforgiving of procedural deadlines, agencies flip-flop interpretations. The best strategy for borderline children is to file faster.

10. Keep an eye on policy changes

The reversal of 2025 canceled the 2023 policy, which canceled the 2018 interpretation, which was based on the 2015 change. CSPA policy is changing. Before taking any action, check the current USCIS guidance and consult with a licensed immigration attorney if the child has less than 18 months until turning 21.

Checklist before filing I-140 / I-130: what to check to avoid losing the child

Before filing I-140 or DS-260 for a child who is close to 21, go through this list. If you answer "don't know" to any item, consult an immigration attorney, do not file "on a whim."

1. Understand the category: Immediate Relative or preference/DV

IR (children of U.S. citizens) is a separate regime, age is frozen on the date of filing I-130. Preference/DV is the formula 203(h) + sought to acquire.

2. Document the exact Receipt and Approval dates of the parent petition

From I-797C (Receipt Notice) and I-797 (Approval Notice). Pending time = the difference in days.

3. Check the current date according to Chart A (Final Action Dates)

In the DOS visa bulletin. Not Chart B - after August 15, 2025, it does not work for CSPA.

4. Calculate CSPA age using the formula

Biological age on the latest date (approval / Chart A current) minus pending time. Must be less than 21.

5. Check sought-to-acquire deadline

1 year after visa availability. Action - child's own I-485 or DS-260 (not parent's).

6. Confirm unmarried status

Marriage is a serious risk for derivative status. The main rule: before obtaining a green card, the child must remain unmarried. If marriage has already occurred, the effect of divorce depends on the category and timing - urgently consult an immigration attorney.

7. Check case for cross-chargeability

If parents are from different countries - see if it is more beneficial to charge the family to the spouse's country.

8. If the country is current - consider Premium Processing for I-140

For EB-1A / EB-2 NIW from Russia, Belarus, Ukraine, Armenia, and other ROW countries, this is often a decisive factor for children close to 21.

9. If the child is in the U.S. in a dependent status (O-3, H-4, L-2)

Plan for F-1 student status as a bridge: O-3/H-4/L-2 expire at 21, CSPA does not negate this.

10. Keep all evidence of sought-to-acquire

I-797C for I-485, NVC fee receipt for CP, any dated documents. Many CSPA denials are won in motion to reopen on one date-stamp.

Frequently Asked Questions

If your child is close to 21, do not delay. CSPA is math. Every month of delay subtracts one month from the child's CSPA age. Premium Processing for I-140, timely DS-260 or I-485 for the child, correct calculation through cross-chargeability - these are specific actions that you either take on time or risk aging out.

Related

Reference material, not legal advice: rules and practice change - check the primary sources and consult a licensed attorney where needed.

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From community discussions

• «The consul works by clear rules. His task is to prove to himself that you're an immigrant, and your task is the opposite: who beats whom. You either play this game by the rules or you don't. After all, it's you who needs the US, not the consul.»

  Ruslan · from public community chats

• «I'm not arguing here that he apparently checked it poorly, but when you buy a package service and not just a lawyer, you expect more. And why was he told to go for EB-2 NIW when he already came with a pretty good package for EB-1 (over 20 years working as a research scientist with a bunch of patents, awards) - he only needed to add media.»

  Kate · from public community chats

• «Everything will be fine. Everyone has their PhDs and candidates of science thrown out and simplified. You need to close three criteria: academic articles - one, patents - two, judging - three. A PhD 100% has a critical or lead role. I think you also have media articles about you. There won't even be an RFE.»

  Alexander · from public community chats

Personal opinions of community members from public discussions, not legal advice.

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