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Opting Out Under The CSPA: The Effect Of Naturalization In Family-Based Immigration

by Charles Wheeler

The U.S. Citizenship and Immigration Services (USCIS) issued a memo recently changing its interpretation of Section 6 of the Child Status Protection Act (CSPA).[1] That section provides relief to adult sons and daughters of lawful permanent resident (LPR) parents who naturalize after the Form I-130, Petition for Alien Relative, is filed. Beneficiaries from the Philippines would benefit from staying in the second preference 2B category as opposed to converting to the first preference. This recent USCIS memo clarifies which group of aliens may use this "opt-out" provision and expands the breadth of its coverage. Nevertheless, Section 6 of the CSPA does not appear to protect all children from the adverse impact of the parent's naturalizing. For that reason, this article will explain the effects of the parent's naturalizing in all possible scenarios.

Child Is Under 21 When Petition Is Filed and When Petitioner Naturalizes

The children of LPR parents who filed a Form I-130, Petition for Alien Relative, on their behalf and who subsequently naturalize may be able to take advantage of the CSPA.[2] If the children are unmarried and under 21 on the date the petitioning parent naturalizes, then they automatically convert from the second preference 2A category to immediate relative. Under the CSPA, they will be able to preserve that status if they subsequently turn 21 before immigrating. It is the date of the parent's naturalization that controls. If the child was under 21 at that time, he or she converted to the immediate relative category and will not age out.

Example. Three years ago Manuel, an LPR from Mexico, filed an I-130 for his son, Rafael, when Rafael was only 17 years old. Six months ago, Manuel naturalized, allowing Rafael to file for adjustment of status as an immediate relative. But just last week, before the adjustment interview could be scheduled, Rafael turned 21. Rafael became an immediate relative when his father naturalized while he was under 21. His subsequently turning 21 will have no effect on his adjustment application since his age is frozen for immigration purposes.

Some LPR petitioners filed only one I-130 for their spouse and proceeded as if their children would immigrate as derivatives. Keep in mind that when these parents naturalize, they will need to file a separate I-130 petition for each child, since the children will lose their derivative status. Because the children were beneficiaries under the original I-130 petition filed on behalf of their parent, they should be able to preserve their status as immediate relatives even if they turn 21 before the new I-130 is filed, since the operative date is when the parent naturalized. We have seen no USCIS memo interpreting this issue, however.

Example. Same facts as above, only Manuel filed the I-130 on behalf of his wife, with Rafael being named as a derivative child. When Manuel naturalized, Rafael was under 21. But he turned 21 before Manuel could file a new I-130 in his behalf. This should have no effect on Manual's status as an immediate relative.

Some children of LPRs who automatically converted from the second preference 2A category into the immediate relative category upon the petitioner's naturalizing might be better off moving into the first preference category upon turning 21. These would include principal beneficiaries who have their own dependent children. If these beneficiaries were in the first preference category, their children could derive status and immigrate with them. But if they are classified as immediate relatives, their children would not be considered derivatives. The children would have to wait until the parent obtained LPR status, filed a separate I-130 petition on their behalf, and the second preference visa became available.

It is doubtful, however, that these beneficiaries will be allowed to opt-out of this automatic conversion. The Department of State (DOS) has indicated that while the CSPA specifically provides for second preference 2B beneficiaries to opt out of automatic conversion to first preference when the petitioner naturalizes, "there is no express opt out provision in the CSPA for aliens who would prefer to remain [in the first preference] rather than converting to [immediate relative] under the special age out protection rules in CSPA Section 2." [3] Statutory construction principles would imply that had Congress wanted children in this situation to opt out of conversion from 2A to immediate relative and convert instead to first preference upon turning 21, they would have provided for such. But neither the USCIS nor the DOS has addressed this specific issue in their interpretive memos. For now, assume that the child of an LPR who naturalizes may not opt out of conversion from 2A to immediate relative if he or she is under 21 at that time, and thus may not convert to first preference upon turning 21.

Child Is Over 21 When Petition is Filed and When Petitioner Naturalizes

Under current law, as well as that existing before passage of the CSPA, an LPR parent's I-130 petition filed on behalf of an unmarried son or daughter over 21 will automatically convert from second preference 2B to first preference when the LPR parent naturalizes.

The first preference category is now backlogged much farther than the second preference 2B category for beneficiaries from the Philippines, and on occasion it has been backlogged farther for beneficiaries from Mexico. For example, the July 2006 Visa Bulletin indicates that second preference 2B beneficiaries from the Philippines are current if the I-130 petition was filed before July 8, 1996. If the same beneficiary were in the first preference category, the I-130 petition would have to have been filed before September 22, 1991, almost five years earlier.

Therefore, when their parents naturalize, and these sons and daughters over 21 convert from 2B to first preference, they actually extend the time they must wait for their visa to become current. Section 6 of the CSPA eliminates this disparity and inequity by allowing these beneficiaries to elect whether they want to convert automatically to the first preference or opt out and stay in the 2B category.[4]

The date of filing of the second preference petition is not material for retention to be approved. In other words, it applies to petitions filed before, on or after August 6, 2002. It also applies to petitions approved before, on, or after August 6, 2002. It applies to beneficiaries who turned 21 before, on or after August 6, 2002. This section of the CSPA is therefore applied retroactively. In addition, this section of the CSPA does not require any one-year filing requirement after the visa becomes available.

The USCIS issued a memo on March 23, 2004 explaining the procedure for opting out.[5] Given that only beneficiaries from the Philippines are currently affected by this provision, they will need to send a letter formally requesting preservation of their 2B classification to the Officer-in-Charge in Manila, according to the memo. The Officer-in-Charge will in turn provide written notification of a decision granting or denying the request and send it to the beneficiary and to the DOS Visa Issuance unit. Beneficiaries who are approved will be treated as if their petitioning parents never naturalized. The request should be sent to USCIS in Manila when the beneficiary is consular processing, as well as when he or she is already in the United States and will be adjusting status. To expedite the request, include the following basic information about the case: case number, date of beneficiary's birth, name of petitioner, priority date, preference category, and a copy of the I_130 approval notice.

Example. Virgie is the 35-year-old daughter of a Filipino man who just naturalized. He filed an I-130 petition on Virgie's behalf on March 1, 1996. At that time she was 24 years old. The second preference 2B category is now current for her priority date. But when her father naturalized, she moved into the first preference category, which is backlogged five years farther than the second preference 2B category. Fortunately, Virgie can elect to remain in the 2B category and thus be eligible to adjust or consular process. She must file a formal election and written request to the USCIS office in Manila. It does not matter that the father's naturalization occurred before or after August 6, 2002.

Child Is Under 21 When Petition is Filed but Over 21 When Petitioner Naturalizes

Under current law, as well as that existing before passage of the CSPA, an LPR parent's I-130 petition filed on behalf of an unmarried child under 21 will automatically convert from second preference 2A to first preference when the LPR parent naturalizes if the child had turned 21 before the petitioner naturalized. The petition may have converted from 2A to 2B upon the child turning 21, or it may have stayed in the 2A category because the beneficiary's adjusted age is under 21 after applying CSPA Section 3 principles. But in either case it will convert to the first preference upon the parent's naturalizing.

With respect to CSPA Section 6, the USCIS originally interpreted the statutory language narrowly. The agency decided that the opt-out provision would only apply if the I-130 petition was "initially filed" when the beneficiary was over 21. If the beneficiary had started out in the second preference 2A category and subsequently moved into the 2B category, the beneficiary could not opt out of automatic conversion to the first preference category upon the petitioner naturalizing.

Example. Same facts as above only Virgie was under 21 at the time the I-130 was filed. In that case she would have started out in the 2A category and converted to the first preference category when the father naturalized. She could not opt out of this conversion and stay in the 2B category.

But the June 14, 2006 memo from Michael Aytes, USCIS Associate Director of Domestic Operations, changes that outcome.[6] The agency will now apply CSPA Section 6 to all beneficiaries who are over 21 and in the second preference 2B category, regardless of whether they started out in the 2A or 2B, if they wish to remain in that category rather than converting to the first preference. 

Example. In the examples above, it would not matter if Virgie had been under 21 or over 21 at the time the petitioner initially filed the I-130 petition. If she turns 21 before the petitioner naturalizes, she would automatically convert to the first preference upon the naturalization. She could then opt-out if it were more beneficial to remain in the second preference 2B category.

Nevertheless, there may still be circumstances when the petitioner's naturalizing will result in further delay in the beneficiary's obtaining LPR status. To understand this, one must be familiar with Section 3 of the CSPA. This section allows children in the second preference 2A category to preserve their 2A status upon turning 21 if they are under 21 using their "adjusted age" on the date the 2A category visa becomes available for their priority date. Their adjusted age is determined by subtracting from their biological age the number of days the I-130 was pending before being approved by the USCIS. They have one year from the date they became current to seek adjustment of status or an immigrant visa or else they lose the benefit of this section.

Section 3 changed the definition of unmarried child under 21 of an LPR for purposes of eligibility for the second preference 2A classification. The language in INA 203(h) is mandatory; the determination of age "shall be made using" the child's adjusted age, not biological age. While the child in the 2A category would not be able to opt out of this section, or to put it another way, would not be able elect to convert to the 2B category upon turning 21, this would happen by operation of law if the child failed to seek LPR status within one year of the visa becoming available.

Under CSPA Section 3, therefore, some children under 21 of LPR petitioners are able to preserve their second preference 2A classification upon turning 21 if they are still under 21 using their adjusted age on the date the 2A becomes current. But let's assume that before the child immigrates or adjusts status in the 2A category, the petitioner naturalizes. The child in that case would convert from the 2A category to the first preference category, since it is the child's biological age that would control, not his or her adjusted age. The child would not be considered an immediate relative, since he or she is over 21 using his or her biological age on the date the petitioner naturalized. CSPA 2 controls age-out principles for immediate relatives, and it requires the child to be under 21 using his or her biological age on the date the petitioner naturalizes.[7]

In most cases the first preference is more current than the 2A category or within a few months of it, but that is not the case at the present time for nationals of Mexico and the Philippines. For nationals of those countries, the first preference is backlogged much farther eight years for Filipinos and over seven for Mexicans than the 2A category.

While CSPA Section 6 allows children in the 2B category to opt out of conversion to first preference, there is no equivalent opt-out provision for children in the 2A category. Standard statutory construction principles would imply that Congress understood what it was doing when it passed the CSPA and that it failed to include this category of individuals at the time it specifically included a similar group.

The recent Aytes memo does not seem to offer much help, either. It reinterprets CSPA Section 6 to include within its coverage I-130 petitions filed when the beneficiary was either under 21 or over 21. But it is still limited to "an alien who is now in the unmarried son or daughter [2B] classification." If the beneficiary is in the 2A category, through application of adjusted age principles, it appears that there is no comparable way to opt out of conversion to the first preference upon the petitioner's naturalizing. The Filipino beneficiary could wait more than one year to seek LPR status, in which case he or she would then convert to the 2B classification and could then opt out of conversion to first preference. But that does nothing to beneficiaries who want to hold on to the advantage of their 2A classification.

Example. Ramiro, an LPR from Mexico, filed an I-130 for his then 15-year-old daughter on August 5, 1997. It was approved on August 10, 1999. The 2A category became current on July 1, 2004. On that date the daughter had turned 21 using her biological age, but she was still under 21 using her adjusted age. She became locked into the 2A category when she filed for adjustment of status or an immigrant visa within one year. But Ramiro completed the naturalization process and became a U.S. citizen on August 1, 2004, before she could adjust or immigrate. She is now the child over 21 of a U.S. citizen and converted to the first preference category. The same result would happen if the father naturalized before the 2A became current but after she had turned 21 using her biological age. While the 2A category is current for Mexicans, the first preference is backlogged several more years.

One could argue, based on equitable principles, that the daughter should be able to opt out of conversion to first preference, just like beneficiaries in the 2B category. Alternatively, one could argue that the child moved into the immediate relative category when the petitioner naturalized, since she was under 21 using her adjusted age. But these appear to be weak legal arguments. Without further clarification from the USCIS on this point, the best advice for affected Mexican and Filipino children would be for the parent not to naturalize.


Endnotes

1 "Clarification of Aging Out Provisions as They Affect Preference Relatives and Immediate Family Members Under The Child Status Protection Act Section 6 And Form I-539 Adjudications for V Status," Michael Aytes, USCIS Assoc. Director, Domestic Operations (June 14, 2006).

2 INA 201(f)(2), 8 USC 1151(f)(2).

3 "Child Status Protection Act: ALDAC #2," State #015049 (January 17, 2003).

4 CSPA 6, amending and adding INA 204(k), 8 USC 1154(k).

5 "Section 6 of the Child Status Protection Act," Joe Cuddihy, Dir. International Affairs, USCIS (March 23, 2004).

6 "Clarification of Aging Out Provisions as They Affect Preference Relatives and Immediate Family Members Under The Child Status Protection Act Section 6 And Form I-539 Adjudications for V Status," Michael Aytes, USCIS Assoc. Director, Domestic Operations (June 14, 2006).

7 CSPA 2, amending and adding INA 201(f)(2), 8 USC 1151(f)(2).


About The Author

Charles Wheeler, Esq. is the Director of Training and Technical Support at the Catholic Legal Immigration Network (CLINIC). He is also the editor of "Child Status Protection Act: A Practitioner's Guide, New 2006-2007 Edition" and "Family-based Immigration: A Practitioner's Guide, New 2006-2007 Edition".


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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