IN August 2004, Jade, a legal permanent resident, petitioned for her child, John. John was classified under the F2A category as an unmarried child of a legal permanent resident. When the petition was filed, John was only 17 years-old. In March 2007, USCIS approved Jade’s petition for her son. In July 2009, Jade naturalized and became a US citizen. Jade thought that naturalization would not hinder her son’s case. If anything, it would only speed things along.
In April 2010, the priority date for the F2A category became current. Jade thought that John would be protected under the Child Status Protection Act (CSPA) and still benefit from the F2A classification. Jade proceeded with the consular processing of her son’s case in hopes to finally be reunified with her son. To her surprise, the US Embassy in Manila classified John as an unmarried son of a US citizen, the F1 category. The priority date of the F1 category was many years from becoming current. Jade sought to take advantage of the “opt-out” clause under CSPA which would allow John to opt-out of the F1 category to his original F2 category. Unfortunately, the US Embassy informed Jade that John could only opt-out to F2B (unmarried son of a legal permanent resident) category which also required a longer wait in priority date. The law was ambiguous on this issue. Although John was no longer a child, he should have been deemed a child under CSPA. Jade came to us and we advocated on her behalf in attempt to persuade the US Embassy to recognize that John should be classified in the F2A category after applying CSPA.
Congress enacted CSPA to create a mathematical formula which allows for a child applicant’s age to be subtracted by the amount of time that a visa petition was pending. Under federal regulations, a visa petition is automatically converted to the proper classification after the petitioner naturalizes. However, sometimes the automatic conversion causes the beneficiary to be placed in a less favorable visa category with longer waiting periods. Therefore, CSPA also included a provision which allows an alien to “opt-out” of the less favorable category and remain in its original category. Intuitively, a beneficiary over the age of 21 years when the petitioner naturalizes may still be classified under the F2A category if he/she is deemed a child after the application of the CSPA formula and opting out of the less favorable category. THIS IS WRONG!
In a recent published decision, Matter of Zamora-Molina (BIA 2011), by the Board of Immigration Appeals, the BIA ruled that the “opt-out” clause under CSPA only applied to opting out from F1 to F2B category. The reasoning was that if the beneficiary child was under 21 when the petitioner naturalized, he would automatically be locked in as an immediate relative, not subject to any priority dates. However, if the petitioner naturalizes after the beneficiary child turns 21, he would already automatically be in the F2B category before the petitioner naturalized. Therefore, the beneficiary can only elect the F1 or F2B preference categories. The respondent in this recent case raised an interesting scenario which is whether the respondent would have been able to retain the F2A classification if the petitioner did not naturalize. Under the current CSPA regulations, a child’s age should be subtracted by the amount of time that the visa petition was pending. Therefore, in Jade’s case, if she never naturalized, when the F2A category priority date became current, John may have been able to obtain his immigrant visa through the F2A category by applying the CSPA formula because his age would be 20 years old and an unmarried child of a legal permanent resident. The BIA did not address this fundamentally unfair scenario and stated that it did not have the authority to rule on the constitutionality of the CSPA laws enacted by Congress. Fair or unfair, this is the current law until Matter of Zamora-Molina is overturned.
To prevent any unnecessary delays in reunification, you should consult a competent immigration lawyer to assess your case before proceeding with naturalization. Naturalization could delay the reunification with your child for many years. We understand the difficulties and complexities of the US immigration laws.
* * *
Kelly O’Reilly is a nationally known immigration expert and former immigration officer. He is a highly sought after speaker on immigration and employment compliance issues. Mr. O’Reilly serves as the current chair of the Riverside County Bar Association Immigration section and is a partner in the full-service immigration firm of Wilner & O’Reilly where he provides free consultations. Mr. O’Reilly can be contacted at (562)207-6789 or he welcomes email inquiries at [email protected].
