Question Corner - Marta's Choice (April 2015) | CLINIC

Question Corner - Marta's Choice (April 2015)

Marta is an LPR who is married with three children.  She is eligible to naturalize, but wants to know whether to proceed. She filed an I-130 petition for her husband, Pablo, and named their three children as derivatives.  The I-130 was filed on November 12, 2010 and was approved on April 13, 2011.  The F-2A priority date became current in September 2013, and everyone filed for an immigrant visa within one year. The eldest child, Diana, was born on November 24, 1992. Her middle sister, Luz, was born three years later, and her brother, Tomas, a year after that.  They all entered the country several years ago with nonimmigrant visas, but they have long since overstayed.  They have held off submitting the affidavit of support, so no consular interview has been scheduled.

What advice do you have for her?

 

Answer:

Marta is in a bit of a quandary.  If she were to naturalize, her husband, Pablo, would convert to immediate relative.  Since he entered with inspection, he would qualify to file for adjustment of status.  Therefore, he would not face the unlawful presence bar upon leaving the country to consular process.  If Marta were to naturalize, the three children would lose their derivative status, and she would need to file separate I-130s for them. The two younger children, aged 19 and 20, would also qualify as immediate relatives and thus could also adjust status.  But the eldest child, Diana, has already turned 21.  She is currently in the F-2A category based on her adjusted age and the Child Status Protection Act.  Her status is locked in, since she was under 21 using her adjusted age on the date the priority date became current.  If Marta naturalizes and files a new I-130 for Diana, it will be in the F-1 category, which is backlogged several decades for Mexicans.  Diana cannot consular process until Pablo has become an LPR.  In this situation, Marta’s naturalizing would allow her husband and two of her children to benefit immediately, since they would avoid the unlawful presence ground of inadmissibility, but it would work a great hardship on her other child.  The Attorney General has indicated that the USCIS will expand eligibility for the provisional waiver program, which would help Marta’s family should she choose not to naturalize, but the agency will have to publish a regulation and implement that change. There is no easy answer to this question.