New immigration restrictions in the United States will have an impact on the children of foreigners who apply for lawful permanent resident status or green cards.
Parents register their green card applications alongside children under the age of 21. The new policy update affects these children, who turn 21 at the time of their parents’ green card petitions.
“In practice, the policy change introduced by USCIS will cause more children to become unable to remain attached to their parents’ green card visa petition because the children will become adults over age 21 for purposes of the U.S. immigration system,” says Nicholas Mastroianni III, President & CMO, U.S. Immigration Fund
US has updated the Policy Manual to clarify that a visa becomes available for the purposes of Child Status Protection Act (CSPA) age calculation based on the Final Action Dates chart of the Department of State Visa Bulletin.
The new guidance applies to requests filed on or after August 15, 2025. However, USCIS will apply the February 14, 2023, policy of CSPA age calculation to adjustment of status applications pending with USCIS before August 15, 2025, as they may have relied on that policy when they filed.
CSPA Rule
Generally, an unmarried child of a foreigner must be under age 21 to obtain lawful permanent resident status in the United States based on their parent’s approved petition for a family-sponsored, employment-based, or diversity visa. If they turn 21 and age out during the immigration process, they generally are no longer eligible to immigrate based on their parents’ petition.
Policy Update
This policy update ensures both USCIS and the Department of State use the Final Action Dates chart in the Visa Bulletin to determine when a visa becomes available for the purposes of CSPA age calculation.
According to USCIS, the February 14, 2023, policy resulted in inconsistent treatment of foreigners who applied for adjustment of status in the United States versus foreigners outside the United States who applied for an immigrant visa with the Department of State.
This established a consistent CSPA age calculation for foreigners who apply for adjustment of status and immigrant visas.
“USCIS’s new instruction says that, for any adjustment filings submitted on or after August 15, the agency will rely on the latter — the date when visas can be issued — when it computes whether a child remains under 21. In practice, that makes the age-test stricter for new filings because the ‘issue’ date is often later than the ‘file’ date,” adds Mastroianni III.
In such a case, where the children age out, they need to file for a separate visa. “An aged-out child usually needs a separate legal route—most commonly F-1—while parents continue their green-card case, which often means added costs, different travel rules, and split timelines for the family,” says Mastroianni III.
Impact on Indians
The new USCIS interpretation of the CSPA is expected to negatively impact Indian families pursuing EB2 and EB3 employment-based immigration.
“Due to the long waiting lists for EB2 and EB3 green cards for Indian-born skilled workers, the new interpretation of the CSPA increases the chance that a young child will be eventually be considered over age 21 under U.S. immigration law, and thereby excluded (age-out) from the parent’s green card process as years pass,” says Ignacio Donoso – Managing Partner, Donoso & Partners, LLC.
India frequently shows longer waitlists in EB1, EB2 and EB3 employment categories. That means the calendar that allows people to submit paperwork can be months or years ahead of the calendar that signals when visas can actually be issued.
Because the agency will now use the later issuance date to measure a child’s age for protections, Indian families who depended on the earlier submission date lose that safety margin,” adds Donoso.
Will it also apply to EB-5 visa category? “The only employment-based green card category that is not presently subject to this issue is the EB5 category,” informs Mastroianni III.
Will the children of H-1B visa holders lose Green Card rights under this change? Donoso explains with an example:
Families where a parent works in the U.S. on an H-1B and a child holds dependent status (H-4) keep those non-immigrant permissions. What can change is whether the child becomes a lawful permanent resident through the parent’s green-card application.
If, under the new timing test, the child’s adjusted age exceeds 21, that child will no longer be admitted as a dependent on that particular green-card case. In short: day-to-day visa rights remain intact; the guaranteed, bundled path to a green card may be lost.
A teenager on an H-4 was expecting to receive a green card together with a parent. After USCIS applies the Final Action Date calculation, the teen’s computed age is over 21. The parents’ green-card application continues to move forward and can succeed, but the teen is not included as a derivative beneficiary and must pursue a separate immigration route.