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By
Charles
Wheeler
Catholic Legal Immigration Network, Inc. (CLINIC)
U.S. Citizenship and Immigration Services (USCIS)
issued a
memo recently changing its interpretation of section 6 of the Child
Status Protection Act (CSPA). 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 non-U.S. citizens 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. If the children
are unmarried and under 21 on the date the petitioning parent
naturalizes, 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 on 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 U.S. Dept. 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." 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 USCIS nor 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 Sept.
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.
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 Aug. 6, 2002. It
also applies to petitions approved before, on, or after Aug. 6, 2002.
It applies to beneficiaries who turned 21 before, on, or after Aug. 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.
USCIS issued a memo on Mar. 23, 2004,
explaining the procedure for opting out. 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 U.S. 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 Mar. 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 Aug. 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, USCIS
originally interpreted the statutory language narrowly. The agency
decided that the opt-out provision would apply only 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. 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 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 section 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 section 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.
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 Aug. 5,
1997. It was approved on Aug. 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 Aug. 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 USCIS on this point, the
best advice for affected Mexican and Filipino children would be for the
parent not to naturalize.
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