Section 6 of the Child Status
Protection Act (CSPA) allows beneficiaries of I-130 petitions that have been
converted from the Family Second Preference (F2B) to the Family First
Preference (F1), after the parent has naturalized, to opt out and remain in the
F2B. The American Immigration
Council’s February 2015 advisory
provides a comprehensive overview of the CSPA.
While the wait in the F1 is
generally less than in the F2A, in some instances, it is possible for the F1 to
be more backlogged than the F2B. The Philippines has been the prime
example, and was the only country where the F1 was worse off than the F2B for
several years. Thus, the issue of whether to opt out of the F1 mainly concerned
people born in the Philippines for several years. Since June 2014, this has changed. The
Philippines F1 has been doing better than the F2B, and there has been no need
for beneficiaries of I-130 petitions born in the Philippines to opt out. On the other hand, since June 2014, with the
sole exception of Mexico, beneficiaries born in all other countries are better
off under the F2B than the F1. This changed too for Mexico as of October 1,
2014, when even Mexican born beneficiaries started doing better under F2B than
F1. Under the latest State Department Visa Bulletin of March 1, 2015, http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-march-2015.html, except for the Philippines, beneficiaries of I-130
petitions born in all other countries are better off under the F2B than the F1.
An quick analysis of how the F-1 has
compared to the F2B since 1992 is provided below (courtesy David Isaacson):
According to the list
of Family Worldwide priority dates for FY1992-2014 available at http://travel.state.gov/content/dam/visas/family-preference-cut-off-dates/Cut-off_Dates_worldwide_online.pdf, F1 has
always been ahead of F2B, with a brief exception in FY-2001 (when F1 but not
F2B became briefly unavailable in August and September 2001), until June 2014,
when F2B pulled ahead (at first it was just 01APR07 for F2B versus 22MAR07 for
F1, then the gap widened). F2B has also been ahead in the three Visa
Bulletins so far of FY2015, http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-october-2014.html , http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-november-2014.html, http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-december-2014.html , http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-january-2015.html, http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-february-2015.html , and http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-march-2015.html.
For the Philippines,
according to the FY1992-2014 list at http://travel.state.gov/content/dam/visas/family-preference-cut-off-dates/Cut-off_Dates_Philippines_online.pdf, F2B pulled
ahead of F1 in August of 1992, and stayed ahead until July of 2014.
Beginning in August 2014, Philippines F1 pulled back ahead of Philippines F2B,
and it too has stayed that way October 2014-March 2015.
As for Mexico, the
Mexico FY1992-2014 list at http://travel.state.gov/content/dam/visas/family-preference-cut-off-dates/Cut-off_Dates_Mexico_online.pdf shows F1 generally ahead of F2B, but
there have been more anomalies over the years. At the end of FY1996 and
in February-March of 2002, F1 was unavailable but F2B wasn’t. There was
an inversion in July 2001 right before both became unavailable for the
remainder of FY2001. In July-September of 2005, Mexico F1 retrogressed
all the way to January 1, 1983, while F2B was at January 1, 1991. In May
of 2006, Mexico F2B again pulled slightly ahead of Mexico F1 before falling
behind again in the remaining months of FY2006. In FY2007, Mexico F2B was
ahead of Mexico F1 in May 2007 through September 2007. In FY2009, Mexico
F2B pulled ahead, or rather F1 feel behind, during July-September 2009.
The next inversion after that was indeed October 2014, and then it has stayed
inverted since.
Section 6 of the CSPA has been codified in
Section 204(k) of the Immigration & Nationalization Act (INA) entitled
"Procedures for unmarried sons and daughters of citizens," which
provides:
- In general.
- Except as provided in
paragraph (2), in the case of a petition under this section initially
filed for an alien unmarried son or daughter's classification as a
family-sponsored immigrant under section 203(a)(2)(B), based on a parent
of the son or daughter being an alien lawfully admitted for permanent
residence, if such parent subsequently becomes a naturalized citizen of
the United States, such petition shall be converted to a petition to classify
the unmarried son or daughter as a family-sponsored immigrant under
section 203(a)(1).
- Exception. - Paragraph (1) does not apply if the son or daughter
files with the Attorney General a written statement that he or she elects
not to have such conversion occur (or if it has occurred, to have such
conversion revoked). Where such an election has been made, any determination
with respect to the son or daughter's eligibility for admission as a
family-sponsored immigrant shall be made as if such naturalization had not
taken place.
- Priority date.
- Regardless of whether a
petition is converted under this subsection or not, if an unmarried son or
daughter described in this subsection was assigned a priority date with
respect to such petition before such naturalization, he or she may
maintain that priority date.
- Clarification. - This subsection shall apply to a petition if it is
properly filed, regardless of whether it was approved or not before such
naturalization.
What Section 204(k) means is that an
F2B beneficiary of an I-130 petition is automatically converted into F1 upon
the naturalization of the parent who was previously a lawful permanent resident
(LPR). However, such a beneficiary may opt-out, either prior to the
conversion or after the conversion, by requesting such an election through a
written statement. If an election has been made, the son or daughter
would be considered under the F2B as if such naturalization of the parent never
took place.
At issue is the interpretation of
the phrase "in the case of a petition under this Section initially
filed for a alien's unmarried son or daughter's classification as
family-sponsored immigrant under Section 203(a)(2)(B)."
In a previous USCIS Memo dated March
23, 2004 (March 23, 2004 Memo), the USCIS opined that the opt-out
provision applied only to a beneficiary whose initial Form I-130 was filed
after he or she turned 21 or over as the unmarried son or daughter of an
LPR. If on the other hand, the I-130 petition was filed by an LPR on
behalf of his or her child when the child was under 21 years of age, and the child
attained the age of 21, and then the parent naturalized, the opt-out provision
would no longer be applicable according to that Memo.
Fortunately, the USCIS reversed
itself in a subsequent Memo from Michael Aytes, dated June 14, 2006 (June 14, 2006 Memo), and opined that the phrase
"initially filed" would be applicable to the beneficiary who was
sponsored as a minor. The June 14, 2006 Memo generously notes that the
prior policy had a perverse result of older siblings who were originally
sponsored under F2B acquiring permanent residency more quickly than the younger
siblings who had to wait longer under the F1. The Memo also notes that it
is reasonable to interpret "initially filed" as "initially filed
for an alien who is now in the unmarried son or daughter
classification."
At present, beneficiaries born in
all countries excepting the Philippines may opt out from F1 and remain in F2B,
and thus the guidance provided in the March 23, 2004 Memo regarding contacting
the USCIS Officer in Charge in Manila may no longer be relevant. According to a
April 2008 Memo from Donald Neufeld (April 2008 Neufeld Memo), one must file a request in writing at the USCIS District
Office with jurisdiction over the beneficiary’s residence. For example, one
would have to make such a request with the New Delhi Field Office (which covers India,
Pakistan, Bangladesh, Nepal, Bhutan, Sri Lanka, Afghanistan, and the Maldives)
if the beneficiary resides in any of these countries. The question is whether all USCIS District
offices are set up to accept unsolicited requests of this sort, and whether
such a request would truly be effective.
In addition to writing to a USCIS
District Office, one should not be prevented from also writing to either the
Service Center that processed the I-130 petition or to the National Visa
Center, if the approved I-130 petition is already residing there. It may also
be well worth it to notify the USCIS at the time of filing an adjustment of
status application if the beneficiary resides in the United States. For
instance, if the beneficiary has automatically converted to F1 and finds that
F2B is more advantageous, he or she should still go ahead and file the
adjustment of status application accompanied by a letter requesting that he or
she be allowed to opt-out of F1. The adjustment-application option arguably
complies with the April 2008 Neufeld Memo because a family-based adjustment
filing with the lockbox is made with the expectation that it will likely be
ultimately forwarded to the local District Office for an interview, by way of
the National Benefits Center.
The
timing of making such a request is also crucial. It is probably advisable to
make the request to opt out just prior to the priority date becoming current or
at the time when it has become current. While one may in principle be able to
reverse an opt-out, it is preferable to
wait until the F-2B is current or almost current before opting
out. One would not want to be the test case for how many times you can
opt out, and reverse, and reverse your reversal, if the relative positions of
the F-1 and F-2B keep changing over time before the priority date is current.
Finally,
the USCIS has always taken the position, affirmed by the Board of Immigration
Appeals in Matter of Zamora-Molina, 25 I&N
Dec. 606 (BIA 2011) that it is the beneficiary’s biological age that is locked
in when the petitioner naturalizes and not the protected CSPA age. Hence, if
the beneficiary, who has already turned 21, has his or her age protected under
the CSPA so as to remain in the Family Second Preference (2A), as the minor
child of a permanent resident parent, then it may not be advisable for the
parent to naturalize if the child would be disadvantaged under the F1, or if
there is an opt out, under the F2B. Zamora-Molina further held that the
child could not opt out from F1 to F2A, only to F2B. It is thus important to strategically
consider whether naturalization by the parent would be worth it if it would
disadvantage the child’s ability to more quickly receive the green card.
(The information
contained in this blog is of a generalized nature and does not constitute legal
advice).
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