Applied for unmarried child under 21/now over 21

[Mr Twister 1]

Hello,

my wife applied for her unmarried daughter (under21) while she was a resident. My wife is now a citizen and unmarried daughter is over 21. It looks like she has gone from an F2A to a F1 which looks like it might be a disaster as far as wait time is concerned. Do we have any options here?

Thanks for any help!

[aaron2020 11,651]

Actually, your stepdaughter was in the F2b category. When she turned 21, she aged out into the F2b category. When your wife became a US citizen, she went from the F2b category to the F1.

Unfortunately, your wife's daughter will be processed in the F1 category.

Read these;

http://www.gurfinkel.com/imm_updates187.htm

http://www.gmanetwork.com/news/story/325987/pinoyabroad/ofwguide/immigration-guide-parent-s-naturalization-dooms-child-s-cspa-eligibility

[aleful 1,905]

hi

no, because when she turned 21 as said, she changed from category F2A to F2B, and since her mom became a USC after she turned 21, now she is an F1 category

if she would have been under 21 when her mom became a USC, then from an F2A, she would have become an immediate relative with no waiting time.

[Mr Twister 1]

All,

thanks for the support. For the sake of knowledge, here is what I found.

CSPA basically states that a person's age (a child that is under 21 and is petitioned for permanent residence by a US Citizen) is reduced by the amount of time that the petition is in process. This means the time when the petition was filed and the time when the petition is approved. In Ana Marias's case, her petition was filed in November 2012, and it was approved in August 2013. The lapse of time between these two events, in other words, the processing time of the petition was nine months.

Because Ana Maria's petition was filed before she became 21, her age is reduced by the amount of time that the petition was in process; a total of nine(9) months. So, at the time that Bianca received her citizenship, in November 2013, Ana Maria's
'age' for the purpose of this petition was 21 years plus four months, minus 9 months, or 20 years and 7 months(21.4 - 9 = 20.7).

Therefore, the second clause below (If the petition(Form I-130) was filed by a permanent resident parent and the parent naturalizes before the beneficiary turns 21, the beneficiary’s age “freezes” on the date the petitioner naturalized) applies.

Ana Maria's age, for the purpose of this application 'freezes' at the age 20 years, seven months, the month that Bianca received her citizenship. So she qualifies to become permanent resident under this clause.

[NickD 203]

These laws are all arbitrary and can only wonder on what logic they were written. For a parent with an unmarried child over 21, still a kid, still requires a bundle of money to support them through college, still a family member, still a dependent.

But not according to the USCIS. If a US citizen meets a wonderful woman with two kids and one just happens to be barely over 21, a tough decision has to made as to whether to leave that kid behind or not. Kid is still single, 30 years old already, and nine years have gone by. And we are still trying. Keeping a family together is not a criteria with the USCIS. And still an arbitrary law.

[aleful 1,905]

All,

thanks for the support. For the sake of knowledge, here is what I found.

CSPA basically states that a person's age (a child that is under 21 and is petitioned for permanent residence by a US Citizen) is reduced by the amount of time that the petition is in process. This means the time when the petition was filed and the time when the petition is approved. In Ana Marias's case, her petition was filed in November 2012, and it was approved in August 2013. The lapse of time between these two events, in other words, the processing time of the petition was nine months.

Because Ana Maria's petition was filed before she became 21, her age is reduced by the amount of time that the petition was in process; a total of nine(9) months. So, at the time that Bianca received her citizenship, in November 2013, Ana Maria's

'age' for the purpose of this petition was 21 years plus four months, minus 9 months, or 20 years and 7 months(21.4 - 9 = 20.7).

Therefore, the second clause below (If the petition(Form I-130) was filed by a permanent resident parent and the parent naturalizes before the beneficiary turns 21, the beneficiary’s age “freezes” on the date the petitioner naturalized) applies.

Ana Maria's age, for the purpose of this application 'freezes' at the age 20 years, seven months, the month that Bianca received her citizenship. So she qualifies to become permanent resident under this clause.

hi

yes but you are interpreting it incorrectly, a child of a USC who was petitioned before she was 21,

she was petitioned as a child of a LPR, the parent has to become a USC before the child turns 21 for CSPA to come into effect. then the age freezes.

but since she naturalized after the child turned 21, the child is considered as a unmarried child over 21 of a USC, category F1. the parent didn't become a USC until after she turned 21.

[aaron2020 11,651]

All,

thanks for the support. For the sake of knowledge, here is what I found.

CSPA basically states that a person's age (a child that is under 21 and is petitioned for permanent residence by a US Citizen) is reduced by the amount of time that the petition is in process. This means the time when the petition was filed and the time when the petition is approved. In Ana Marias's case, her petition was filed in November 2012, and it was approved in August 2013. The lapse of time between these two events, in other words, the processing time of the petition was nine months.

Because Ana Maria's petition was filed before she became 21, her age is reduced by the amount of time that the petition was in process; a total of nine(9) months. So, at the time that Bianca received her citizenship, in November 2013, Ana Maria's

'age' for the purpose of this petition was 21 years plus four months, minus 9 months, or 20 years and 7 months(21.4 - 9 = 20.7).

Therefore, the second clause below (If the petition(Form I-130) was filed by a permanent resident parent and the parent naturalizes before the beneficiary turns 21, the beneficiarys age freezes on the date the petitioner naturalized) applies.

Ana Maria's age, for the purpose of this application 'freezes' at the age 20 years, seven months, the month that Bianca received her citizenship. So she qualifies to become permanent resident under this clause.

What you posted is about a parent naturalizing BEFORE the child turns 21.

Your wife naturalized AFTER her daughter turned 21. According to the articles from the links, CSPA does not apply in a case where the parent naturalized AFTER the child turns 21.

Edited February 20, 2014 by aaron2020

[Mr Twister 1]

"Your wife naturalized AFTER her daughter turned 21"

Correct - but as I understand it, this still applies "CSPA allows the time a visa petition was pending to be subtracted from the beneficiary’s biological age at the time of visa availability so that the applicant is not penalized for the time in which USCIS did not adjudicate the petition." (filed in November 2012, and it was approved in August 2013)

That is what i'm using to calculate:Bianca received her citizenship, in November 2013, Ana Maria's 'age' for the purpose of this petition was 21 years plus four months, minus 9 (CSPA Rule)months, or 20 years and 7 months(21.4 - 9 = 20.7).

Clear as MUD

Edited February 20, 2014 by Mr Twister

[aaron2020 11,651]

"Your wife naturalized AFTER her daughter turned 21"

Correct - but as I understand it, this still applies "CSPA allows the time a visa petition was pending to be subtracted from the beneficiarys biological age at the time of visa availability so that the applicant is not penalized for the time in which USCIS did not adjudicate the petition." (filed in November 2012, and it was approved in August 2013)

That is what i'm using to calculate:Bianca received her citizenship, in November 2013, Ana Maria's 'age' for the purpose of this petition was 21 years plus four months, minus 9 (CSPA Rule)months, or 20 years and 7 months(21.4 - 9 = 20.7).

Clear as MUD

You need to read the links that I provided.

You are grasping at straws.

CSPA does not apply to your over 21 years old stepdaughter once your wife naturalized.

That is perfectly clear if you had read the articles that was linked here for you.

[NickD 203]

Seems like all this could have been avoided if the sponsoring US citizen step parent petitioned for that child if unmarried and below the age of 21 years of age.

Petitioned for my stepdaughter that fell in this category with no problems at the same time as her mom. If it wasn't for the U'SCIS misplacing my I-130 for her, she would have received her condition green card that same day as her mom. But fortunately, received it 45 days later. She barely turned 18 when her mom was naturalized so had to wait another two years before applying for citizenship.

For my stepson, barely over 21 and unmarried, I was not permitted to petition for him, we were told, had to wait until his mom became a LPR first to petition for him. Then was told, the process will go much quicker if she was naturalized first.

Read that link about the LPR petitioning parent becoming naturalized during the petition process, that practically blew my brain.

[Mr Twister 1]

I have read your link and understand what the article claims. I'm now seeking some professional advice with plan B in mind:

CSPA provides another type of relief referred to as the “opt-out.” This is very limited in scope. If a permanent resident petitioner filed a Form I-130, Petition for Alien Relative, for an unmarried son/daughter and then the petitioner naturalized, the beneficiary can choose to remain in the second preference classification instead of automatically converting to a 1^st preference classification. The reason that this may be beneficial is that sometimes the waiting time for the second preference visa is shorter than the waiting time for the first preference visa. If this situation applies, check the visa bulletin to see if the opt-out may be helpful. If the beneficiary wants to opt-out, he or she must make a request in writing to USCIS.

[aleful 1,905]

I have read your link and understand what the article claims. I'm now seeking some professional advice with plan B in mind:

CSPA provides another type of relief referred to as the “opt-out.” This is very limited in scope. If a permanent resident petitioner filed a Form I-130, Petition for Alien Relative, for an unmarried son/daughter and then the petitioner naturalized, the beneficiary can choose to remain in the second preference classification instead of automatically converting to a 1^st preference classification. The reason that this may be beneficial is that sometimes the waiting time for the second preference visa is shorter than the waiting time for the first preference visa. If this situation applies, check the visa bulletin to see if the opt-out may be helpful. If the beneficiary wants to opt-out, he or she must make a request in writing to USCIS.

Hi

that is mostly for countries with long years of waiting such as Phillipines, so what country is she from? because you have to check the priority date from categories F2B and F1. a person from an F2B category if the parent naturalizes, can choose to remain as an F2B category if the priority date becomes current earlier than if he or she chose to be under the F1 category

if she is from a Latin American country other than Mexico, the F1 category has less waiting time than F2B

you are still trying to believe that she belongs to the F2A category which we have told you that she isn't, you can throw away your money to attorneys, but she will never be an F2A

[aaron2020 11,651]

I have read your link and understand what the article claims. I'm now seeking some professional advice with plan B in mind:

CSPA provides another type of relief referred to as the opt-out. This is very limited in scope. If a permanent resident petitioner filed a Form I-130, Petition for Alien Relative, for an unmarried son/daughter and then the petitioner naturalized, the beneficiary can choose to remain in the second preference classification instead of automatically converting to a 1^st preference classification. The reason that this may be beneficial is that sometimes the waiting time for the second preference visa is shorter than the waiting time for the first preference visa. If this situation applies, check the visa bulletin to see if the opt-out may be helpful. If the beneficiary wants to opt-out, he or she must make a request in writing to USCIS.

How does your stepdaughter opt out of CSPA when it does not apply to her at all?

A BIA decision is as close as you're going to get to professional advice on the particular consequences when a parent naturalized after a child turns 21. No one here is a professional.

Best of luck to you.

Edited February 20, 2014 by aaron2020

[EireneFaith 54]

Hello everyone. Thanks for these conversation. It gives me an idea what to do with my sons petition. I recently filed I-130 for my 2 sons under F2B. My lawyer advised me to file the petition as soon as possible to put my sons in waiting. He also told me if I become a US Citizen I can upgrade my petition for them to F1. I read a website that F1 has longer waiting time than F2B. I thought being a USC will upgrade my petition for them to be placed in earlier approval. But in the Philippines we have different case. F2B is better, so I don't need to get hurry to become a USC till my sons arrive in US may God permits.

[aaron2020 11,651]

Hello everyone. Thanks for these conversation. It gives me an idea what to do with my sons petition. I recently filed I-130 for my 2 sons under F2B. My lawyer advised me to file the petition as soon as possible to put my sons in waiting. He also told me if I become a US Citizen I can upgrade my petition for them to F1. I read a website that F1 has longer waiting time than F2B. I thought being a USC will upgrade my petition for them to be placed in earlier approval. But in the Philippines we have different case. F2B is better, so I don't need to get hurry to become a USC till my sons arrive in US may God permits.

Your case is completely different from the OP's.

For the OP, his stepdaughter moving from the F2b category to the F1 category shorten her time waiting for a visa from 8 years to 7 years.

For Filipinos, it's faster to petition an unmarried child over 21 as an LPR (F2b) than as a US citizen (F1). Moving from F2b to the F1 category means a longer wait. Congress accounted for this and allows these children to retain the F2b category instead of automatically moving to the F1 category.

It's perfectly safe for you to naturalize. You do not have a child where CSPA would help (F2b principal beneficiaries by definition are over 21 when a parent files and are not covered by CSPA). Your children can also retain the F2b category.

OP is trying to retain F2a which is impossible based on the BIA judgment.