The USCIS Policy Manual, https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-7, states that only the 'Dates of Final Action Date (FAD)' protects the age of the child under the Child Status Protection Act (CSPA). If an I-485 application is filed pursuant to a 'Dates of Filing (DFF)' and the child ages out before the final date becomes available, the child will no longer be protected despite being permitted to file an I-485 application. The I-485 application will get denied, and if the child no longer has an underlying nonimmigrant status, can be put in great jeopardy through the commencement of removal proceedings, and even if removal proceedings are not commenced, can start accruing unlawful presence, which can trigger the 3- and 10-year bars to reentry. If the child filed the I-485 as a derivative with the parent, the parent could get approved for permanent residence when the final date becomes available while the child's application gets denied.
There is a clear legal basis to use the filing date to protect the age of a child under the CSPA:
INA 245(a)(3) only allows for the filing of an I-485 adjustment of status application when "an immigrant visa is immediately available." Yet, I-485 applications can be filed under the DFF rather than the FAD. As explained, the term "immigrant visa is immediately available" has been interpreted more broadly to encompass dates ahead of when a green card becomes available. Under INA 203(h)(1)(A), which codified Section 3 of the CSPA, the age of the child under 21 is locked on the "date on which an immigrant visa number becomes available…but only if the [child] has sought to acquire the status of an alien lawfully admitted for permanent residency within one year of such availability." If the child's age is over 21 years, it can be subtracted by the amount of time the applicable petition was pending. See INA 203(h)(1)(B).
Under INA 245(a)(3), an I-485 application can only be filed when an "immigrant visa is immediately available."
Therefore, there is no meaningful difference in the verbiage relating to visas availability – "immigrant visa becomes available" and "immigrant visa is immediately available" under INA 203(h)(1)(A) and INA 245(a)(3) respectively. If an adjustment application can be filed based on a Filing Date pursuant to 245(a)(3), then the interpretation regarding visa availability under 203(h)(1)(A) should be consistent, and so the Filing Date ought to freeze the age of the child, and the child may seek to acquire permanent residency within 1 year of visa availability, which can be either the Filing Date or the Final Action Date.
Unfortunately, USCIS disagrees. It justifies its position through the following convoluted explanation that makes no sense: "If an applicant files based on the filing date chart prior to the date of visa availability according to the final date chart, USCIS considers the applicant to have met the sought to acquire requirement. However, the applicant's CSPA age calculation is dependent on visa availability according to the final date chart. Applicants who file based on the filing date chart may not ultimately be eligible for CSPA if their calculated CSPA age based on the final dates chart is 21 or older." The USCIS recognizes that the sought to acquire requirement is met when an I-485 is filed under the DFF, but only the FAD can freeze the age! This reasoning is inconsistent. If an applicant can meet the sought to acquire requirement from the DFF, the age should also similarly freeze on the DFF and not the FAD. Based on USCIS's inconsistent logic, the I-485s of many children would get denied if they aged out before the FAD becomes available.
It would be greatly appreciated if USCIS could reverse this policy by allowing CSPA protection based on the 'Dates of Filling'.
Thank you for your attention to this important matter.