Risk of Interfiling on a Child’s CSPA Eligibility
Key Takeaways
- Interfiling (changing the underlying petition basis of a pending I-485) can unintentionally change how a child’s age is calculated under the Child Status Protection Act (CSPA).
- CSPA age is a formula: age when a visa becomes available minus the time the underlying petition was pending; changing the petition can reduce “pendency time” and cause aging out.
- Families considering interfiling should run the CSPA math first, confirm the “seek to acquire” timing, and consult counsel before transferring to a later-filed petition.
- It has been reported that Murthy Law Firm warned practitioners that routine interfiling done just before a Visa Bulletin update can carry a real risk to children’s immigrant status.
Background: what interfiling and CSPA mean
Interfiling is the practice of asking USCIS (U.S. Citizenship and Immigration Services) to change the underlying immigrant petition basis for a pending adjustment of status (I‑485) — for example, moving an applicant from one approved I‑130 to another. The Child Status Protection Act (CSPA) protects some children from “aging out” by using a formula that adjusts a child’s age based on how long an immigrant petition was pending. The Department of State’s monthly Visa Bulletin determines when a priority date is “current” and when a visa becomes available, which triggers the CSPA calculation.
The risk explained
When an applicant switches the I‑130 or other underlying petition to a newer filing, the calculation of “time the petition was pending” may change. Because the CSPA age equals the child’s age at the date a visa becomes available minus the petition’s pendency time, losing accrued pendency can raise a child’s CSPA age and cause loss of protected status. Also remember the separate “seek to acquire” requirement: even if a child’s CSPA‑adjusted age is under 21, the child must seek to acquire status (for example, be granted adjustment or issued an immigrant visa) within one year of the visa becoming available, or protection may be lost.
What this means for families and next steps
For parents and children, the practical effect can be severe — a child who appeared protected by CSPA can suddenly age out because of an otherwise routine interfile. Before interfiling, individuals should (1) compute CSPA ages under both the current and proposed petition bases, (2) confirm dates in the DOS Visa Bulletin, and (3) get legal advice if the child is near 21. Attorneys and applicants should document the rationale for interfiling and consider alternatives, such as preserving the earlier petition’s pendency or timing filings to avoid jeopardizing CSPA protection.
Source: Original Article