The CSPA age out calculation for an employment-based green card is a subtraction: your child's age on the date a visa becomes available, minus the number of days your I-140 petition was pending, must come out under 21 (USCIS Policy Manual, Vol. 7, Part A, Ch. 7). As of October 21, 2026, USCIS decides when a visa "becomes available" using only the State Department's Final Action Dates chart for adjustment applications filed on or after August 15, 2025 (USCIS Policy Alert PA-2025-15).
That change matters most to families in long backlogs, such as India-born applicants. Filing your child's I-485 early, under the Dates for Filing chart, no longer locks in their age. Applications filed before August 15, 2025 are still judged under the more generous February 2023 policy (USCIS Policy Manual, Vol. 7, Part A, Ch. 7).
- CSPA age equals the child's age on the date a visa becomes available minus the number of days the I-140 was pending.
- For I-485s filed on or after August 15, 2025, USCIS measures visa availability only by the Final Action Dates chart (USCIS Policy Alert PA-2025-15).
- For I-485s filed before August 15, 2025, USCIS still applies its February 14, 2023 policy, and the CSPA age established at filing is locked in.
- The child must seek to acquire permanent residence, for example by filing Form I-485, within 1 year of visa availability.
- The child must remain unmarried, and the CSPA age must be under 21.
- In the October 2026 Visa Bulletin, EB-2 India's final action date is November 1, 2013, while its dates for filing date is January 15, 2015.
Who does the Child Status Protection Act cover in an employment-based case?
The Child Status Protection Act (CSPA) does not change the definition of a child, which is an unmarried person under 21. It provides a method for calculating age for immigrant visa purposes, known as the "CSPA age" (USCIS Policy Manual, Vol. 7, Part A, Ch. 7). Employment-based preference derivative applicants are among the groups it covers (USCIS, Child Status Protection Act). If you are the principal beneficiary of an EB-1, EB-2 or EB-3 petition, your children are derivatives, and our guide to how family members are covered by an EB-1 petition explains how that works.
To qualify as a child under CSPA, a derivative must meet four conditions (USCIS Policy Manual, Vol. 7, Part A, Ch. 7; USCIS, Child Status Protection Act):
- a qualifying petition or adjustment application pending on or after the CSPA's effective date, August 6, 2002;
- a calculated CSPA age under 21;
- remaining unmarried; and
- seeking to acquire permanent residence within 1 year of visa availability, absent extraordinary circumstances.
How is the CSPA age out calculation done?
The statute sets the formula. It starts from the child's age on the date a visa number becomes available, and for a derivative child that date is:
"the date on which an immigrant visa number became available for the alien's parent" INA 203(h)(1)(A), 8 U.S.C. 1153(h)(1)(A)
The statute applies that age only if the child sought permanent residence within one year of availability, and reduces it by the number of days the applicable petition was pending (8 U.S.C. 1153(h)). USCIS writes it as "Age at time of visa availability - Pending time = CSPA Age" (USCIS Policy Manual, Vol. 7, Part A, Ch. 7).
Each piece has a precise meaning:
- Pending time is the number of days between the date the petition was properly filed and the date it was approved. It includes motions and appeals but not consular returns (USCIS Policy Manual, Vol. 7, Part A, Ch. 7).
- The I-140 receipt date counts, not the priority date. The Policy Manual notes that in employment cases based on a labor certification the priority date differs from the filing date, and that the filing (receipt) date is the right one for CSPA (USCIS Policy Manual, Vol. 7, Part A, Ch. 7). Time spent in PERM before the I-140 was filed is therefore not subtracted.
- Visa availability is the later of the petition approval date or the first day of the month of the Visa Bulletin whose Final Action Dates chart shows availability for your category, priority date and country of chargeability (USCIS Policy Manual, Vol. 7, Part A, Ch. 7).
- Your I-485 filing date does not matter for the calculation itself, although your child must file or otherwise seek permanent residence to be considered a child (USCIS Policy Manual, Vol. 7, Part A, Ch. 7).
USCIS's own example: a child who is 21 years and 4 months old when a visa becomes available, with a petition pending for 6 months, has a CSPA age of 20 years and 10 months, which is under 21 (USCIS Policy Manual, Vol. 7, Part A, Ch. 7). A quick I-140 approval, for example under premium processing, means fewer days to subtract.
What changed on August 15, 2025?
USCIS went back to the Final Action Dates chart. On August 8, 2025, it issued Policy Alert PA-2025-15, effective August 15, 2025, which says USCIS considers a visa available for CSPA purposes when it is authorized for issuance according to the Final Action Dates chart (USCIS Policy Alert PA-2025-15).
Under the February 14, 2023 policy it replaced, when USCIS designated the Dates for Filing chart for adjustment filings, USCIS also used that chart to calculate CSPA age (USCIS Policy Alert PA-2025-15). USCIS said returning to the Final Action Dates chart ensures a uniform interpretation across agencies and parity with immigrant visa applicants abroad, for whom the State Department uses only that chart (USCIS Policy Alert PA-2025-15).
The Policy Manual now states the consequence plainly:
"An alien who chooses to file an adjustment application based on the Dates for Filing chart may ultimately not be considered a child for immigration purposes if his or her calculated CSPA age is 21 or older at the time his or her visa becomes available according to the Final Action Dates chart." USCIS Policy Manual, Volume 7, Part A, Chapter 7, Section F.4
| Situation | Rule USCIS applies | Status on October 21, 2026 |
|---|---|---|
| I-485 filed on or after August 15, 2025 | Visa availability measured by the Final Action Dates chart | In force (PA-2025-15) |
| I-485 pending before August 15, 2025 | February 14, 2023 policy; CSPA age set at filing is locked in | In force (Policy Manual) |
| Did not file during February 14, 2023 to August 14, 2025, with extraordinary circumstances | Age may be calculated under the former policy | In force (Policy Manual) |
| America's CHILDREN Act (S. 2886) | Would base age on the earlier of the petition or labor certification filing date | Introduced bill, not law (S. 2886) |
Why does this hit Indian families hardest?
Because the two charts are far apart in the most backlogged queues. For October 2026, USCIS requires all employment-based adjustment applicants to use the Dates for Filing chart (USCIS, Adjustment of Status Filing Charts). In the October 2026 Visa Bulletin, EB-2 India's Dates for Filing date is January 15, 2015, but its Final Action Date is November 1, 2013; for EB-3 India the dates are January 15, 2015 and January 1, 2014 (U.S. Department of State, Visa Bulletin for October 2026). Our October 2026 Visa Bulletin breakdown and wait times for Indians cover the queue itself.
A family with a 2014 EB-2 India priority date can file I-485s this month, but the child's CSPA age is not fixed until the Final Action Date passes their priority date, which could be months or years later. For a teenager, that gap is the whole question.
Here is a hypothetical. Your I-140 was pending for 5 months. Your child is 19 when the family files under the Dates for Filing chart. If the Final Action Dates chart reaches your priority date when your child is 21 years and 3 months old, the CSPA age is 20 years and 10 months, and the child is protected. If it takes until your child is 21 years and 6 months old, the CSPA age is 21 years and 1 month, and the child has aged out despite the pending I-485.
What is the "sought to acquire" requirement?
Your child must seek to acquire permanent residence within 1 year of the visa becoming available, and properly filing Form I-485 is one way to do it (USCIS Policy Manual, Vol. 7, Part A, Ch. 7). Filing under the Dates for Filing chart before the Final Action Date is reached still meets this requirement, even though it does not fix the CSPA age (USCIS Policy Manual, Vol. 7, Part A, Ch. 7).
Some practical points from the Policy Manual (USCIS Policy Manual, Vol. 7, Part A, Ch. 7):
- Steps like contacting an attorney do not count; filing does.
- A DS-260 that covers only the principal does not satisfy the requirement for a derivative child.
- If the visa stays available for a continuous year and the child does not seek to acquire, CSPA protection is lost.
- USCIS may excuse a late filing for extraordinary circumstances not created by the applicant, such as serious illness, but the fact of being or having been a child "does not constitute extraordinary circumstances."
What happens if the dates retrogress?
It depends on which chart you filed under. If your child filed when a visa was available under the Final Action Dates chart and the CSPA age was under 21, that age is locked in through final adjudication, and USCIS holds the application if the dates move backwards. If your child filed under the Dates for Filing chart, the age is calculated and locked only when the Final Action Dates chart first shows availability (USCIS Policy Manual, Vol. 7, Part A, Ch. 7).
If the visa becomes available and then retrogresses before your child files, the age is not locked, and it is calculated again from the next availability date (USCIS Policy Manual, Vol. 7, Part A, Ch. 7). Our overview of the I-485 in practice explains how a pending application waits for a visa number.
Does switching petitions change the calculation?
Yes. When USCIS approves a transfer of the underlying basis of a pending I-485 to another approved petition, the child's CSPA age is calculated using the new petition (USCIS Policy Manual, Vol. 7, Part A, Ch. 7). The same applies after a job change: if a second employer's I-140 becomes the basis for your adjustment, the calculation uses the second petition, even if you keep the first one's priority date (USCIS Policy Manual, Vol. 7, Part A, Ch. 7). The new petition's pending time and availability date can push the result either way, so run the numbers before switching.
What if your child ages out anyway?
The statute's automatic conversion clause does not generally rescue derivative children. In Scialabba v. Cuellar de Osorio, decided June 9, 2014, the Supreme Court upheld the Board of Immigration Appeals' reading that the clause gives relief only to a subset of aged-out aliens (Scialabba v. Cuellar de Osorio), namely those who:
"qualified or could have qualified as principal beneficiaries of a visa petition, rather than only as derivative beneficiaries piggy-backing on a parent." Scialabba v. Cuellar de Osorio, 573 U.S. 41 (2014), plurality opinion of Kagan, J.
After you become a permanent resident, you can petition for your child in the F2B category, which covers unmarried sons and daughters 21 and older of permanent residents (USCIS, Green Card for Family Preference Immigrants). That queue is long too: F2B India's final action date in October 2026 is August 22, 2019 (U.S. Department of State, Visa Bulletin for October 2026).
Congress has a bill that would change this. The America's CHILDREN Act of 2025, S. 2886, introduced in the Senate on September 18, 2025 and referred to the Judiciary Committee, would determine child status using age on the earlier of the petition filing date or the labor certification filing date (S. 2886, introduced text). It is a proposal, not law.
What this means for you
If your child's I-485 was filed before August 15, 2025, USCIS applies the 2023 policy, under which the CSPA age established at filing is locked in. If you are filing now, the Final Action Dates chart decides, and a pending I-485 is not a guarantee.
- Find your I-140 receipt and approval dates and count the days between them.
- Work out your child's age on the first day of each month the Final Action Date might reach your priority date.
- File your child's I-485 as soon as you are eligible, to meet the one-year sought to acquire requirement.
- Remember that your child must stay unmarried to keep qualifying as a child.
- Before a job change or a petition transfer, ask your attorney to recalculate CSPA age under the new petition.
- For a child likely to age out, discuss a separate status with your attorney early.
Where to start
If a faster category could reach your priority date before your child turns 21, the free evaluation shows whether your profile fits EB-1A or the EB-2 NIW, and Frank, our AI assistant at /frank, finds real opportunities for the criteria you are missing. Petitions are reviewed and filed by our partner law firm, Lai & Turner, who can include your children as derivatives and check their CSPA timing.
Sources
All checked October 21, 2026.
- USCIS Policy Manual, Volume 7, Part A, Chapter 7, Child Status Protection Act (current as of October 2, 2026). Formula, pending time, Final Action Dates rule, pre-August 15, 2025 filings, sought to acquire, retrogression, transfers.
- USCIS Policy Alert PA-2025-15, Revising Age Calculation Under the Child Status Protection Act (August 8, 2025). The change, its effective date and its reasons.
- USCIS, Child Status Protection Act (CSPA) (last reviewed 11/14/2025). Employment-based derivatives are covered.
- 8 U.S.C. 1153(h), INA 203(h) (govinfo, U.S. Code 2024 edition). Statutory age formula.
- U.S. Department of State, Visa Bulletin for October 2026. EB-2, EB-3 and F2B India dates.
- USCIS, Adjustment of Status Filing Charts from the Visa Bulletin (last updated 10/01/2026). Dates for Filing chart required for employment-based filings in October 2026.
- Scialabba v. Cuellar de Osorio, 573 U.S. 41 (2014) (June 9, 2014). Automatic conversion not available to derivative-only beneficiaries.
- USCIS, Green Card for Family Preference Immigrants (last updated 07/08/2025). F2B definition.
- S. 2886, America's CHILDREN Act of 2025, introduced in Senate (September 18, 2025). Proposed age-out protections.
Frequently asked questions
How do I calculate my child's CSPA age in an employment-based case?
Take your child's age on the date a visa becomes available and subtract the number of days your I-140 was pending, from its receipt date to its approval date. A visa becomes available on the later of the I-140 approval date or the first day of the month in which the Final Action Dates chart shows your priority date as current. If the result is under 21, your child is still a child for green card purposes.
Does filing the I-485 under the Dates for Filing chart protect my child from aging out?
Not for applications filed on or after August 15, 2025. Filing under the Dates for Filing chart satisfies the requirement to seek permanent residence within one year, but USCIS calculates the child's CSPA age only when the Final Action Dates chart reaches your priority date. If your child's calculated age is 21 or older at that point, they are no longer a child, even though their I-485 is already on file.
What if my child's I-485 was filed before August 15, 2025?
USCIS continues to apply its February 14, 2023 policy to adjustment applications pending before August 15, 2025. Under that policy, a visa counted as available when USCIS considered it available for accepting the I-485, which could be the Dates for Filing chart, and the CSPA age established at filing is locked in through final adjudication. Your child must still remain unmarried and have met the one-year sought to acquire requirement.
Does time spent on PERM count toward my child's CSPA age?
No. The USCIS Policy Manual says the priority date should not be used for CSPA purposes, and that the petition's filing or receipt date is the right date. Pending time runs from the date USCIS receives the I-140 to the date it approves it, so months spent in PERM labor certification before the I-140 was filed are not subtracted from your child's age.
Can my child keep my priority date if they age out?
Generally not as your derivative. In Scialabba v. Cuellar de Osorio (2014), the Supreme Court upheld the Board of Immigration Appeals' reading that the conversion and priority date retention clause helps aged-out beneficiaries who could have been principal beneficiaries, not derivatives relying on a parent. Once you are a permanent resident, you can file a new F2B petition for an unmarried son or daughter over 21, with a new priority date.
Green Card Guide AI is not a law firm and this article is not legal advice. It describes evidence-building strategy in general terms; your attorney determines what belongs in your petition and how it's argued.
