The Permanent Resident's Naturalization, and Its Impact on Unmarried Children

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On January 31, 2011, the USCIS Ombudsman's Office hosted a public teleconference on the Child Status Protection Act (CSPA) to share information from USCIS and interview Charles Wheeler, author of the book "AILA's Focus on the Child Status Protection Act," as well as numerous articles on the Child Status Protection Act.

Under current law, an Legal Permanent Resident (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 same is true if the child was under 21 at the time the I-130 was filed but later turned 21 before the LPR naturalized; the petition converts from 2A to 2B.

However, the first preference category is now backlogged much further than the second preference 2B category for beneficiaries from the Philippines, and on occasion it has been backlogged further for beneficiaries from Mexico. Therefore, when their parents naturalize, and these children over 21 convert from 2B to first preference, they actually extend the time they must wait for their visa to become current. The CSPA attempts to eliminate this disparity and inequity by allowing these beneficiaries to elect whether they want to automatically convert to the first preference or opt out and stay in the 2B category.

Mr. Wheeler noted that USCIS has released a memo defining the opt-out request procedure. Affected children may file their request in writing with the USCIS District Office having jurisdiction over the beneficiary’s residence. Beneficiaries who are approved will be treated as if their petitioning parents never naturalized. To expedite the request, include the following 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.

In response to questions from callers on the teleconference, Mr. Wheeler noted the May 2008 Neufeld memo. This USCIS policy says the one-year filing requirement is satisfied when an applicant files an adjustment application after his or her priority date becomes available for the second time. Mr. Wheeler said this argument can be extended to consular processing so that people subject to retrogression, and waiting outside the United States, should be able to come back in when their priority date becomes available the second time. http://www.greencardapply.com/news/news11/news11_0517.htm