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The Perils of Naturalizing: BIA Holds No Opt-Out for F-2As

By Charles Wheeler

The most important canon in the medical profession is to do no harm.  That adage comes into play in immigration law as well, especially when advising clients whether or not to naturalize.  Most of those judgment calls involve clients who have committed an offense that might make them subject to removal. It also arises when the client has spent a considerable amount of time outside the United States while a permanent resident, thus opening up the possibility of abandonment of permanent residency.  But after passage of the Child Status Protection Act (CSPA), another pitfall involves the potential adverse effect naturalization could have on the client’s children.

One of the more confounding – and now disappointing – aspects of the CSPA has been whether it offers children protection when their parents naturalize and they automatically convert to a different preference category.  After all, a special section codified at INA § 204(k) was added by the CSPA to ensure that children from the Philippines in the F-2B category would not be penalized when their parents naturalize.  These children are allowed to opt out of the automatic conversion to the F-1 category and remain in the F-2B, given that the backlogs in the first preference are longer.  What about children who are over 21 using their biological age, but still in the F-2A category due to their CSPA age?  The first preference is also currently backlogged farther than the F-2A for all nationalities.  Shouldn’t they be able to take advantage of this benefit and opt out? The answer, according to a recent BIA decision, is “no.” Matter of Zamora-Molina, 25 I&N Dec. 606 (BIA 2011). The holding sends a clear warning to those who are contemplating naturalizing and whose children might be affected.  It also is a sharp rebuke to the USCIS, which recently analyzed this issue and came to the opposite conclusion.

Effect of Petitioner Naturalizing.  Let’s start with a review of the possible scenarios when the petitioner naturalizes.  These include the following: (1) the child is under 21 using biological age; (2) the child is over 21 using biological and CSPA age at that time; and (3) the child is over 21 using biological age but under 21 using CSPA age. It is the last scenario that has caused the most confusion and has now been addressed by the BIA.

 

Child Is Under 21 When Petition Is Filed and When Petitioner Naturalizes. The children of LPR parents who filed a Form I-130 on their behalf and who subsequently naturalize will be able to take advantage of the CSPA if these children are unmarried and under 21 on the date the petitioning parent naturalizes. The children automatically convert from the second-preference F-2A category to immediate relative. Under Section 2 of the CSPA, codified at INA § 202(f)(2), they will be able to preserve that status even 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: Nora, an LPR, filed an I-130 for her 17-year-old daughter, Sophia.  Three years later, before the F-2A category became current, Nora naturalized.  Sophia, now age 20, automatically converted to the immediate relative category, since she was under 21 on the date of the petitioner’s naturalization.

It is the child’s biological age – not his or her CSPA age – on the date of naturalization that determines immediate relative status.  The BIA’s recent decision also addressed this issue and clarified that one cannot use the CSPA age-adjustment formula of section 3 to claim immediate relative status. Section 2 of the CSPA only looks to biological age on the date of naturalization, not adjusted age.  Children who are over 21 on the date of naturalization convert to the first preference category, regardless of how long the I-130 petition had been pending, as will be discussed in the second and third scenarios.

 

Child is Over 21 When Parent 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 the second-preference F-2B category 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 (after applying CSPA age-adjustment rules) before the LPR naturalized; the category converts from F-2A to F-2B and then to first preference.

The first preference category is now backlogged further than the F-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 sons and daughters over 21 convert from F-2B to first preference, they actually extend the time they must wait for their visa to become current. Section 6 of the CSPA eliminated this penalty by allowing these beneficiaries to elect whether they want to automatically convert to the first preference or opt out and stay in the F-2B category.

The USCIS issued a memo on March 3, 2004, explaining the procedure for opting out. Since only beneficiaries from the Philippines were affected by this provision, they were required to send a letter formally requesting preservation of their F-2B classification to the officer-in-charge in Manila. The officer-in-charge in turn would provide written notification of a decision granting or denying the request and send it to the beneficiary and to DOS’s Visa Issuance unit.

The USCIS subsequently changed the opt-out request procedure. According to a later memo, affected children “should file a request in writing with the District Office having jurisdiction over the beneficiary’s residence.” For those residing in the United States, that will be the local district office. For those residing in the Philippines, it will be the officer-in-charge in Manila. Beneficiaries who are approved will be treated as if their petitioning parents never naturalized. To expedite the request, applicants were told to 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. Sandra is the 34-year-old daughter of a Filipino man who just naturalized. He filed an I-130 petition on Sandra’s behalf on April 15, 2001. At that time she was 24 years old. The second-preference F-2B category is now current for her priority date. But when her father naturalized, she converted to the F-1 category, which is currently backlogged three and a half years further than the F-2B category. Fortunately, Sandra can elect to remain in the F-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.

The statutory language in section 6 of the CSPA is mandatory (“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”), and thus requires the agency to accept the applicant’s written statement opting out of the automatic conversion. Therefore, the son or daughter should not have to file a “request” and have that “approved.” Obviously, one should make this argument in any situation in which the son or daughter is denied the right to opt out.

It would not have mattered if the beneficiary started out in the F-2A category and later converted to the F-2B category by the time the petitioner naturalized.  A clarifying memo from the agency determined that the opt-out protection would extend to those beneficiaries as well.

 

Child Is Over  21 Using Biological Age But Under 21 Using CSPA Age When Petitioner Naturalizes. Section 3 of the CSPA changed the definition of unmarried child under 21 of an LPR for purposes of eligibility for the F-2A classification. The language in INA §203(h) is also mandatory; the determination of age “shall be made using” the child’s adjusted age – not biological age – on the date the visa becomes available or the date the petition is approved, whichever is later. Children are allowed to subtract from their age the entire period the petition was pending before being approved by the USCIS. Therefore, children in the F-2A category who are over 21 using their biological age, but under 21 using their adjusted age on the date the visa becomes available, would not convert to the F-2B category.  These children are able to preserve their F-2A status provided they seek LPR status within one year of the visa becoming available.

Under section 3 of the CSPA, therefore, children of LPR petitioners are able to preserve their F-2A classification upon turning 21 if they are still under 21 using their adjusted age on the date the F-2A becomes current. But assume that before the child immigrates or adjusts status in the F-2A category, the petitioner naturalizes. We know that the child does not convert to the immediate relative category, since section 2 of the CSPA controls and that section looks to the biological age of the child on the date of naturalization. The child would appear to convert from the F-2A category to the first-preference.  But for nationals of all countries, the first preference is currently backlogged four and a half years further than the F-2A category.  For nationals of Mexico and the Philippines, the backlog is considerable (15 years and 12 years, respectively).

While CSPA § 6 allows children in the F-2B category to opt out of conversion to first preference, it has been unclear whether its protection extended to children over 21 but still in the F-2A category.  Are they allowed to opt out and remain in the F-2A category?  That was one of the questions addressed by the recent BIA case, which held that the statute provided no equivalent opt-out provision for children in the F-2A category. The exact language of section 6 reads as follows:

1) 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 [in the F-2B category] 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 [in the first preference category].

(2) 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.

The BIA applied standard statutory construction principles. Section 6 of the CSPA refers specifically to beneficiaries in the F-2B category who wish to opt out of conversion and remain in the F-2B category.  The BIA also looked at Congressional intent, which it found was attempting to “fix…a troubling anomaly in our immigration laws” when some children were “in effect…penalized for becoming citizens.” But it determined that the anomaly that Congress was trying to fix did not extend to the one presented in this case.  It held that: “[n]either section 204(k)(2) of the Act nor the USCIS memorandum allows an alien to elect to remain in the 2A-preference category upon the petitioner’s naturalization where the alien is biologically over the age of 21 but would remain legally a “child” by applying the formula in section 203(h)(1) of the Act.” (emphasis in the original).

As a result of the BIA decision, practitioners must be wary of filing for naturalization if the applicant has children who are approaching or have already turned 21.  Those children might be able to retain their F-2A status using CSPA age-adjustment principles.  But those children would convert automatically to the first preference upon the parent’s naturalizing if they are over 21 using their biological age and would be unable to reverse the process.  For children from Mexico, it will be painful informing them that may have to wait another decade or more before becoming LPRs based on their parent’s naturalizing.

Example. Jose, an LPR from Mexico, filed an I-130 for his daughter, Yolisma.  At the time, she was 17 years old.  The I-130 was pending for four and a half years before it was approved.  Yolisma is now 23, but according to her adjusted age, she is only 19 and is still in the F-2A category.  Her visa is now current, but Jose naturalized last month. Yolisma converted to the first preference category and will be unable to opt out of this conversion to stay in the F-2A.

Ironically, less than four months prior to the BIA’s decision, the USCIS analyzed this issue and decided that the CSPA allowed these children to opt out of conversion to the first preference and remain in the F-2A category. This rationale was set forth in the minutes to a national stakeholders’ meeting held on June 29, 2011.  While the minutes did not carry the force of law, they did provide guidance to practitioners and adjudicators as to the agency’s official position.  It is an embarrassment for the agency now to have to retreat, and an injustice to those who relied on this policy statement to their peril. But after this recent BIA’s decision, it will be a greater embarrassment – and a violation of the first canon – for the practitioner who assists a client in naturalizing only to discover that the children are greatly disadvantaged.