F2A to IR2: Can My Age Be Frozen?

[Jake77 17]

My father is an LPR and wants to become a US citizen.

These are my questions:

1. If he filed the I-130 now as a Green Card holder and became a US citizen later on before the visa is processed, would he be able to update my category from F2A to IR2?

2. Would we have to pay extra fees in order to update my category?

3. If my category could be updated from F2A to IR2, could my age be frozen based on the date the I-130 was filed? Or, would my age still be determined by the formula: age - pending time?

[SusieQQQ 11,586]

1. Yes, assuming you were still under 21.

2. No

3. I believe your age would be frozen as at the date the petition changed to IR2 but stand to be corrected on that one.

 

 

Edited October 21, 2020 by SusieQQQ

[SusieQQQ 11,586]

 Confirming point 3 above, see slide 8 here. Also note the conversion to IR2 is automatic, your parent just needs to inform uscis of naturalization. 
https://www.uscis.gov/sites/default/files/document/presentations/CSPA_TeleconferencePPT.pdf

 

 

If a Lawful Permanent Resident files an F2-A petition for an unmarried child and naturalizes prior to the child turning 21 years of age, the petition automatically converts to an immediate relative.
 For CSPA purposes, the alien’s age is his/her age on the date the lawful permanent resident parent becomes a naturalized U.S. citizen.

 

 

 

Edited October 21, 2020 by SusieQQQ

[SusieQQQ 11,586]

Also note that if you turn 21, even if you would be protected under CSPA under F2A, you would become F1 (longer wait time) if your parent naturalizes. If that is a risk, it is better that your father holds off naturalization until you have your visa.

[Boiler 45,411]

You do have the option not to move to F1.

[SusieQQQ 11,586]

19 minutes ago, Boiler said:

You do have the option not to move to F1.

Turns out you don’t have that option if it’s from F2A - only if it’s from F2B. 

[Boiler 45,411]

3 minutes ago, SusieQQQ said:

Turns out you don’t have that option if it’s from F2A - only if it’s from F2B. 

Did not know that.

[Jake77 17]

4 hours ago, SusieQQQ said:

Also note that if you turn 21, even if you would be protected under CSPA under F2A, you would become F1 (longer wait time) if your parent naturalizes. If that is a risk, it is better that your father holds off naturalization until you have your visa.

I'm sorry, but I am confused. I thought my category would become IR2 if my father naturalizes as long as I am protected by the CSPA's policy.

Or, do you mean that my category would shift from F2A to F1 even when my father becomes a citizen during the process if I aged out (determined by the formula they gave) even under CSPA's policy?

Could you please clarify this for me?

Thank you for your answers.

Edited October 22, 2020 by Jake77

[SusieQQQ 11,586]

33 minutes ago, Jake77 said:

I'm sorry, but I am confused. I thought my category would become IR2 if my father naturalizes as long as I am protected by the CSPA's policy.

Or, do you mean that my category would shift from F2A to F1 even when my father becomes a citizen during the process if I aged out (determined by the formula they gave) even under CSPA's policy?

Could you please clarify this for me?

Thank you for your answers.

If you are under 21 in actual years - you automatically move to IR2 effective the day your father naturalizes and your age is locked as of that date.

If you are over 21 in actual years - even if you are protected by CSPA - you take that actual age on the day your father naturalizes and so your category becomes F1. In this instance the better path to take is for your father not to naturalize until you have your green card. 
The bottom line is that your age “resets” on the day your father naturalizes and that determines which category you end up in. Nolo (link at end) says “When a petitioner naturalizes, the government counts the child’s age from the date of naturalization instead of the date of filing the application”.

 

See the table below “automatic conversion” here https://dyanwilliamslaw.com/2017/10/priority-date-recapture-and-retention-in-family-based-immigration/ and scroll down to the relevant entry:

Petitioner becomes a naturalized U.S. citizen after child, who is protected by CSPA, turns 21: convert from Second Preference A/F2A to First Preference/F1.  NOTE: If there is more backlog in the F1 category, the beneficiary may NOT opt out of the automatic conversion.  The petitioner may refrain from applying for naturalization to prevent adverse effects on the child.

 

You will find the same thing on a number of other lawyer pages. 
Another example from Nolo: 

If the child was under 21 at the time the LPR filed the I-130, and thus started in category F2A, but has since turned 21, the petitioner’s naturalization can cause even more serious problems. This is because the petition automatically converts to category F1. Instead of processing relatively quickly, in a few years maximum, your F1-category child could wait seven or more years (average of of 2019). What’s more, according to USCIS and the Board of Immigration Appeals, there is no opt-out provision for people in this situation. The change is automatic and irreversible.

 

Nolo indicates that  there is an exception in the jurisdiction that falls under the 9th Circuit, which found that the law has been incorrectly applied and that the conversion should still be to IR. If your father lives in this jurisdiction he may want to contact an immigration lawyer about this. It’s not clear to me if this ruling applies to visa applicants living outside the US as the case deciding it was  for someone doing adjustment of status (that is, also actually living in the court’s jurisdiction).

https://www.nolo.com/legal-encyclopedia/how-naturalization-affects-your-child-s-application-for-a-u-s-green-card.html

Edited October 22, 2020 by SusieQQQ

[Jake77 17]

On 10/22/2020 at 11:52 AM, SusieQQQ said:

If you are under 21 in actual years - you automatically move to IR2 effective the day your father naturalizes and your age is locked as of that date.

If you are over 21 in actual years - even if you are protected by CSPA - you take that actual age on the day your father naturalizes and so your category becomes F1. In this instance the better path to take is for your father not to naturalize until you have your green card. 
The bottom line is that your age “resets” on the day your father naturalizes and that determines which category you end up in. Nolo (link at end) says “When a petitioner naturalizes, the government counts the child’s age from the date of naturalization instead of the date of filing the application”.

 

See the table below “automatic conversion” here https://dyanwilliamslaw.com/2017/10/priority-date-recapture-and-retention-in-family-based-immigration/ and scroll down to the relevant entry:

Petitioner becomes a naturalized U.S. citizen after child, who is protected by CSPA, turns 21: convert from Second Preference A/F2A to First Preference/F1.  NOTE: If there is more backlog in the F1 category, the beneficiary may NOT opt out of the automatic conversion.  The petitioner may refrain from applying for naturalization to prevent adverse effects on the child.

 

You will find the same thing on a number of other lawyer pages. 
Another example from Nolo: 

If the child was under 21 at the time the LPR filed the I-130, and thus started in category F2A, but has since turned 21, the petitioner’s naturalization can cause even more serious problems. This is because the petition automatically converts to category F1. Instead of processing relatively quickly, in a few years maximum, your F1-category child could wait seven or more years (average of of 2019). What’s more, according to USCIS and the Board of Immigration Appeals, there is no opt-out provision for people in this situation. The change is automatic and irreversible.

 

Nolo indicates that  there is an exception in the jurisdiction that falls under the 9th Circuit, which found that the law has been incorrectly applied and that the conversion should still be to IR. If your father lives in this jurisdiction he may want to contact an immigration lawyer about this. It’s not clear to me if this ruling applies to visa applicants living outside the US as the case deciding it was  for someone doing adjustment of status (that is, also actually living in the court’s jurisdiction).

https://www.nolo.com/legal-encyclopedia/how-naturalization-affects-your-child-s-application-for-a-u-s-green-card.html

Question - do we have to file something to initiate this "freezing-the-age" process or does it happen automatically when you submit the I-130 (IR2)?

[SusieQQQ 11,586]

9 minutes ago, Jake77 said:

Question - do we have to file something to initiate this "freezing-the-age" process or does it happen automatically when you submit the I-130 (IR2)?

Your age is automatically frozen the day the IR2 is properly filed.