Since at least 1965, the cornerstone of U.S. immigration policy has been centered around family reunification. This approach to immigration entails permitting close relatives of U.S. citizens and lawful permanent residents (green card holders) to come and live in the United States.
The immigration of family members occurs in two primary ways:
- As the “immediate relatives” of U.S. citizens
- Through the family preference system, which includes relatives of U.S. citizens or green card holders.
Immigrating as Immediate Relatives
Immediate relatives include:
- Spouses of U.S. citizens (IR-1/CR-1)
- Unmarried children of U.S. citizens under 21 (IR-2)
- Parents of U.S. citizens aged 21 or older (IR-5 visa)
Immigrating as an immediate relative offers advantages such as immediate visa availability which means that the applicants in this category do not need to wait until their visa number becomes “current” or available.
Immigrating under the Family Preference System
The family preference system facilitates the immigration of the following categories of family members:
- First: Unmarried Sons and Daughters of U.S. Citizens (F1)
- Second: Spouses and Children of Green Card Holders (F2A)
- Second: Unmarried Sons and Daughters (21 years of age or older) of Green Card Holders (F2B)
- Third: Married Sons and Daughters of U.S. Citizens (F3)
- Fourth: Brothers and Sisters of Adult U.S. Citizens (F4)
Every year, a limited number of visas are allocated within the family preference system.
The process of legal immigration to the United States is managed through numerical restrictions referred to as quotas.
These quotas are applied to both the family-based category and the total number of legal immigrant (permanent resident) visas allotted per country each year.
This often leads to backlogs as some countries and categories have more applicants than available visas.
Certain individuals, like immediate relatives, are exempt from these annual limitations and are considered non-quota immigrants.
Immigrant visas are issued by U.S. consulates overseas.
Moreover, the U.S. Citizenship and Immigration Services (USCIS) has the authority to adjust an applicant’s status to Lawful Permanent Resident (green card) while they are within the United States.
Determining whether applicants for immigrant visas can adjust their status or need to follow the consular process depends on multiple factors. These factors include:
- Manner of entry to the U.S.
- Violations of nonimmigrant status
- Filing date of their Petition for Alien Relative (“Priority Date”), and
- Whether they are immigrating as immediate relatives or through the preference system.
In most scenarios, U.S. citizens or green card holders intending to sponsor a family member must have an income of at least 125% of the Federal Poverty Level for their household size.
If their income is inadequate, they may need the assistance of a joint sponsor.
Requirements for Family Relationships
Petitioner refers to the family member who is either a U.S. citizen or a green card holder. Proof of lawful permanent resident status involves possession of a Form I-551, commonly known as a “green card.” Certain family members, such as widows/widowers, abused spouses and children of U.S. citizens and green card holders, particular Amerasian children, and special immigrant juveniles, may be eligible to self-petition.
Beneficiary pertains to the family member who is seeking permanent resident status and has a relationship with the U.S. citizen or LPR petitioner. This beneficiary could be a principal (on whose behalf the relative petition is submitted) or a derivative (spouse or unmarried child of the principal beneficiary in the preference categories).
Spouse. The term spouse denotes a legally valid and recognized marital relationship established in the jurisdiction where the relationship was formed. It must not be a fraudulent marriage, one primarily entered into for obtaining immigration benefits. If the foreign national obtains a lawful permanent resident status based on the marriage and subsequently divorces within two years, there is a presumption of a fraudulent marriage. Furthermore, even if the marriage is valid in the foreign country, it must align with federal or state public policy; certain types of marriages, like polygamous, incestuous, and proxy marriages (unless later consummated), are not acknowledged for immigration purposes. Some states acknowledge common-law marriages. The marriage must be ongoing – meaning not legally terminated – when the permanent residency application is evaluated. If the parties are separated, more evidence is necessary to demonstrate the genuine nature of the marriage at the time of its inception. If the parties wed while the beneficiary was in immigration proceedings, they must establish, with clear and convincing evidence, as opposed to a mere preponderance of evidence, that the marriage is authentic.
Parent. Parent can be a biological parent, a stepparent, an adoptive parent, and a parent of a child born outside of marriage (although the applicant might need to substantiate the “parent-child relationship” through means such as blood tests, proof of living together, financial support, and communication).
Sibling. For brother or sister, each sibling needs to demonstrate that they are the children of at least one shared parent.
Child. The child must be unmarried and under 21 years old. When referring to children aged 21 or older, or those of any age who are married, the term “son or daughter” is applicable.
Regarding legitimacy, a child born to parents who were married at the time of birth is considered legitimate. For children born outside of marriage, they can obtain immigration benefits from either the natural mother or the father if the child was legitimized before turning 18 while under the father’s care. The most prevalent means of legitimation is the marriage of the natural parents. Children born out of wedlock can also gain immigration benefits from the natural father as long as they establish a “bona fide parent-child relationship,” which entails cohabitation and financial support, before reaching 21 years of age.
Stepchildren are eligible for immigration through a stepparent if the child was below 18 years old at the time the stepparent married the biological parent. Whether the stepchild was born within or outside of marriage does not affect eligibility. The stepchild relationship can persist even if the natural parent passes away or divorces the stepparent, provided that the stepparent maintains an active parental role. Stepchildren who are U.S. citizens and aged 21 or older have the ability to act as petitioners and sponsor the immigration of their stepparents to the United States.
Adopted children can qualify for immigration if they were adopted before turning 16 and have been under the legal custody of and living with the adoptive parent for a minimum of two years. These two years can be counted cumulatively. The adoption must be legally valid in the jurisdiction where it was finalized. Moreover, natural siblings of the adopted child are also eligible to immigrate if they were adopted while under 18 by the same adoptive parent.
Adoptions are facilitated under the Intercountry Adoption Act of 2000, which the United States established to fulfill its commitments under the Hague Convention. U.S. citizens intending to adopt and bring a child from one of the member countries of the convention must fulfill stringent criteria to achieve this.
Orphan. A U.S. citizen can sponsor an orphan under the age of 16 if specific legal criteria are met. This includes situations where both parents have passed away, are missing, or have abandoned the child. In cases where a single surviving parent exists, they must be unable to care for the child and must give a definitive release for the child’s immigration or adoption.
To be considered an immediate relative, the child must be under 16 and unmarried when the petition is filed on their behalf. The petitioner must be a U.S. citizen. Additionally, if an orphan has natural siblings, those siblings are also eligible for immigration if they are adopted overseas by the same adoptive parent while still under 18.
Marital Status Requirements
The term “unmarried” refers to individuals who were not married when Form I-130, Petition for Alien Relative was submitted, during the application for adjustment of status or an immigrant visa, and at the time of entering the United States as an unmarried son or daughter of either a U.S. citizen or a green card holder, regardless of any past marital history.
For those seeking immigration as beneficiaries of a second-preference petition, it is essential to maintain unmarried status from the moment the petition is filed until becoming a permanent resident. If the beneficiary happens to marry at any point within this timeframe, the petition will be automatically revoked.
The term “immediate relative” includes the following relatives: spouse, child (unmarried and under 21 years old), and parent of a U.S. citizen. In cases involving parents, the U.S. citizen petitioner needs to be at least 21 years old. This definition also extends to widows or widowers of U.S. citizens who were not legally separated at the time of their spouse’s passing, filed a petition within two years of the death, and did not remarry before gaining immigrant status.
Immediate relatives enjoy immigration privileges without being affected by numerical visa restrictions. Consequently, they are not subjected to the extended waiting periods common for preference categories. However, USCIS service centers which process relative petitions experience backlogs. As a result, even immediate relatives should expect that it can take one year or longer to obtain lawful immigrant status.
Family members being sponsored by green card holders, as well as certain relatives immigrating through a U.S. citizen, encounter limitations based on numerical quotas. The family preference categories are provided below:
- First: Unmarried Sons and Daughters of U.S. Citizens (F1)
- Second: Spouses and Children of Green Card Holders (F2A)
- Second: Unmarried Sons and Daughters (21 years of age or older) of Green Card Holders (F2B)
- Third: Married Sons and Daughters of U.S. Citizens (F3)
- Fourth: Brothers and Sisters of Adult U.S. Citizens (F4)
Preference Quota System
The U.S. Congress has established a ceiling on the annual admission of foreign-born individuals as family-based immigrants, with a cap set at 480,000 individuals per year. This quota system involves a calculation that limits each family-based immigration category, except for the category of “immediate relatives” (spouses, minor unmarried children, and parents of U.S. citizens).
The calculation involves the allocation of unused employment-based immigration visas from one year for use in family-based immigration the following year, and similarly, unused family-based immigration visas from one year are added to the cap for the subsequent year. Consequently, there are minor fluctuations in family-based immigration numbers annually due to this formula. Due to the numerical restrictions in place, significant wait times are common for obtaining an immigrant visa in the majority of family-based immigrant preference categories.
There is no numerical limit placed on the annual admission of immediate relatives as immigrants to the United States.
The subsequent figures represent the quantity of visas accessible within each of the four preference categories for family-based immigration:
- First: Unmarried Sons and Daughters of U.S. Citizens (F1) – 23,400 visas per year, plus any visas left over from the fourth preference;
- Second: Spouses and Children of Green Card Holders (F2A) – 87,900 visas per year, plus any visas left over from the first preference;
- Second: Unmarried Sons and Daughters (21 years of age or older) of Green Card Holders (F2B) – 26,300 visas per year, plus any visas left over from the first preference;
- Third: Married Sons and Daughters of U.S. Citizens (F3) – 23,400 visas per year, plus any visas left over from the first and second preferences;
- Fourth: Brothers and Sisters of Adult U.S. Citizens (F4) – 65,000 visas/year, plus any visas left over from the previous preferences.
To understand the Visa Bulletin and estimate the processing time for a specific visa application, it’s important to understand the following concepts:
Priority Date – Within the quota system, family-based immigrant visas are allocated chronologically based on the date when the Form I-130, Petition for Alien Relative, was submitted to USCIS. This date becomes the “priority date”. To ensure proper registration, the application must be fully filled out, signed, and accompanied by the appropriate filing fee.
The status of the priority date can be “current” meaning that applications filed before that date are not subject to additional waiting.
However, when the priority date is not current, estimating the duration until it becomes current and a visa or adjustment of status is available can be uncertain. To assess this, compare the priority date against the “Application Final Action Dates” in the latest monthly Visa Bulletin, considering both the preference category and the applicant’s country of origin.
The priority date must precede the date listed under “Chart A, Application Final Action Dates” to be deemed current. For instance, a Mexican green card holder seeking to bring their unmarried son on an F-2B visa would refer to the Visa Bulletin’s preference category column for Mexico. If, for example, the current month’s Visa Bulletin displays June 1, 2001, for that category and nationality, only applications with I-130s filed prior to that date are regarded as current.
Starting October 2015, the Department of State introduced a separate chart called “Chart B, Dates for Filing Family-Sponsored Visa Applications.” This chart outlines when an individual can file an adjustment of status application or when the National Visa Center (NVC) can begin consular processing. For instance, the same son of the Mexican green card holder could apply for adjustment of status if the priority date was before January 1, 2002, and USCIS permitted the utilization of the “Dates for Filing Family-Sponsored Visa Applications” for filing. USCIS will indicate each month whether adjustment-of-status applicants can use the “Dates for Filing Family-Sponsored Visa Applications” or if they must use the “Application Final Action Dates.”
Cross-Chargeability. In cases where the principal and derivative beneficiaries are born in different countries, the principles of cross-chargeability might be applicable. Ordinarily, visas are attributed to the country where the principal beneficiary was born. Nonetheless, a core principle of family-based immigration is to maintain family unity. In scenarios where one family member is chargeable to a country with an oversubscribed visa situation, while other family members in the same preference category are chargeable to countries where visas are immediately available, this could lead to separation and undue hardship.
To address this issue, the U.S. immigration law offers a remedy by allowing, under certain circumstances, the family to select the more favorable foreign country. It appears that the application of cross-chargeability is predominantly confined to the third- and fourth-preference categories and cases where it is necessary to prevent the separation of spouses or children from parents. For example, if a U.S. citizen is sponsoring his married son from Mexico, and the son’s spouse is from Guatemala, they may choose to have their visas attributed to Guatemala. This is because the backlog for third preference visas for Mexicans is greater compared to Guatemalans. Likewise, if a U.S. citizen is sponsoring his Japanese brother and the brother’s wife is from the Philippines, the wife could opt to be charged to her husband’s country of birth.
Principal and Derivative Beneficiaries
Individuals for whom the I-130 petition is submitted are designated as “principal beneficiaries.” If these individuals are being petitioned within one of the preference categories and possess a minor, unmarried child or a spouse, these family members might also be eligible to immigrate as “derivative beneficiaries”. A derivative beneficiary refers to the spouse or unmarried child of a principal beneficiary within the preference category.
Derivative beneficiaries do not require separate Form I-130 petitions filed on their behalf. In reality, except for the F-2A preference category, they are not eligible to have a separate Form I-130 petition filed for them. However, if the family member is immigrating as an immediate relative, a separate Form I-130 petition must be filed for each beneficiary.
Derivative family members are granted the same preference standing as the principal beneficiary. These derivative beneficiaries can either accompany the principal beneficiary or engage in “follow-to-join,” meaning they immigrate more than six months after the principal beneficiary.
Retention of Priority Dates
Numerous events can take place between the initial filing of an I-130 petition by the petitioner and the beneficiary’s eventual adjustment of status or immigrant visa application. The following changes can happen while Form I-130 is being processed – the beneficiary’s marital status, age, or even death. Furthermore, the petitioner’s life can change as well, for example – a divorce, naturalization, or loss of permanent resident status. Events involving derivative beneficiaries should also be factored in. The impact of these situations, including retaining the original priority date when filing a new Form I-130 can be reviewed.
General Principles: A foundational rule is that an earlier priority date can be retained when the same petitioner files for the same beneficiary in the same preference category, assuming the prior I-130 petition was not terminated or revoked. In the rare occurrence where the USCIS lost the Form I-130 and petition must be refiled, the priority date from the original petition could usually be retained.
Marriage: If the beneficiary is an immediate relative, marriage leads to a change to the third-preference category. Similarly, if the beneficiary is already over 21 and initially fell within the first-preference category, they transition to the third preference. There is no necessity to submit a new Form I-130; instead, informing the appropriate USCIS service center, National Visa Center (NVC), or consulate about the automatic conversion will be sufficient. The priority date for the third-preference visa petition remains unchanged, as no separate petition was filed.
However, this conversion to the third preference does not apply if the beneficiary is in the second-preference category. For instance, a child/son/daughter of a green card holder cannot marry without triggering an automatic revocation of the I-130 petition. Marrying before immigrating or adjusting status in the second-preference category (F-2A or F-2B) results in the I-130 petition being revoked.
Divorce: Unlike marriage, divorce brings different consequences. A third-preference beneficiary shifts to the immediate-relative category (if under 21) or to the first preference (if 21 or over) on the divorce date. Just as with marriage, a new Form I-130 is unnecessary, and the priority date remains unchanged. Communicating the automatic conversion from third to first preference or immediate-relative to the relevant USCIS service center, NVC, or consulate, along with providing proof of marriage termination, is essential.
Divorce and Naturalization Effects on Immigration Process
When a second-preference beneficiary undergoes a divorce, they cannot regain the F-2A or F-2B preference status as the Form I-130 is automatically revoked. For such cases, the green card holder petitioner needs to file a new Form I-130, without the option of retaining the prior priority date. Yet, if marriage ends in annulment, it could potentially restore the second-preference status, as courts deem annulments as nullifying the marriage from its inception.
If the petitioner, either a U.S. citizen or green card holder, divorces the beneficiary after filing a Form I-130 for a spouse, the petition is automatically revoked. This could apply to a Form I-130 filed for a stepchild from that marriage, where most instances of divorce dissolve the relationship and lead to the I-130 petition being revoked. However, stepchildren who maintain an ongoing relationship with the stepparent might be able to continue with their petition. A divorce between the principal beneficiary and the derivative spouse in the third- or fourth-preference category terminates the derivative status of the spouse.
Naturalization: When a green card holder petitioner becomes a naturalized U.S. citizen, principal beneficiaries under 21 transition from the F-2A category to the immediate-relative category. Similarly, beneficiaries already aged 21 or older in the F-2B category shift to the first preference. No new Form I-130 is required, and the priority date remains unchanged. Communicating this automatic conversion to the appropriate USCIS service center, NVC, or consulate, along with submitting a copy of the naturalization certificate, is crucial.
Notably, the F-2B category might sometimes be more advantageous than the first-preference category, especially for countries like Mexico and the Philippines. Fortunately, the Child Status Protection Act (CSPA) mitigates the potential negative impact of the petitioner’s naturalization on F-2B sons and daughters. CSPA enables them to choose not to undergo the automatic conversion to the first preference.
Second-preference (F-2A) beneficiaries under 21 are not permitted to opt out of the automatic conversion to the immediate-relative category when the petitioner naturalizes. This could result in hardship for the beneficiary if they have derivative children.
Effect of Naturalization on Derivative Beneficiaries: When a principal beneficiary shifts to the immediate-relative category, any accompanying children cannot be included as derivatives. In the F-2A category, children who are derivatives of green card holder petitioners experience change. Upon petitioner naturalization, they lose derivative status and must have a separate I-130 petition filed on their behalf. Though a new I-130 petition is required, the original priority date cannot be retained. However, if the beneficiary is under 21, they are considered immediate relatives and not subject to annual quotas due to the CSPA, which freezes their age.
Death of the Petitioner: The death of the petitioner automatically revokes the Form I-130. However, widows/widowers of U.S. citizens who have not remarried can convert the pending or approved petition into a Form I-360. If the surviving spouse hadn’t been the beneficiary of an I-130 filed before the U.S. citizen spouse’s death, they must file an I-360 self-petition within two years of the death. Widows/widowers then adjust or immigrate as immediate relatives, with unmarried children under 21 qualifying as derivative beneficiaries. Other surviving family members may also continue to receive immigration benefits from a pending/approved I-130 post-petitioner death. INA §204(l) can negate the effects of death if applicable, while those who don’t meet §204(l) criteria might be eligible for “humanitarian reinstatement”.
Age-Out and Prior to CSPA: Prior to the Child Status Protection Act (CSPA), turning 21 led to different outcomes. Immediate relatives converting to first preference, F-2A converting to F-2B, or derivative beneficiaries possibly losing status were common. It’s vital to remember that if CSPA doesn’t apply (like failing to comply with the one-year filing requirement), rules before CSPA prevail. For instance, U.S. citizen parent-filed Form I-130 beneficiaries under 21 automatically transitioned from immediate relative to the first-preference category upon turning 21. Similarly, green card holder parent-filed Form I-130 beneficiaries under 21 automatically switched from F-2A to F-2B upon turning 21. In the second-preference category, derivative beneficiaries lost their status upon turning 21, but unmarried children of green card holder parents could restart in the F-2B category via a new I-130. These former derivative beneficiaries did not retain the original priority date when their green card holder parents petitioned for them.
The Child Status Protection Act
Since its enactment on August 6, 2002, the Child Status Protection Act (CSPA) has been instrumental in expediting the immigration process for numerous unmarried children of U.S. citizens. Subsequently, both USCIS and the Department of State (DOS) have jointly released over a dozen memoranda that shed light on their interpretations of the statute and offer guidance on its implementation. The CSPA has notably facilitated faster immigration for unmarried children of U.S. citizens compared to the previous legal framework. While it provides a more restricted form of relief for unmarried children of Lawful Permanent Residents (green card holders) and derivative beneficiaries within the preference categories.
Children of U.S. Citizens
When the children of U.S. citizens have an I-130 petition filed by their parent, they can maintain the status they held at the time of petition submission. If they were immediate relatives on that date – meaning they were unmarried and under 21 – they will continue to be classified as immediate relatives even if they reach the age of 21 before obtaining permanent residency. This means they are protected from “aging out.” Previously, under the older law, they would have automatically transitioned to the first-preference category upon turning 21. However, the CSPA does not modify their status if they marry before immigrating. In this scenario, if a son or daughter marries, they will still convert to the third-preference category.
The Child Status Protection Act (CSPA) is advantageous for the children of Lawful Permanent Resident (green card holder) parents who become naturalized citizens. If these children are under 21 and unmarried when the petitioning parent becomes a naturalized citizen, specifically within the second-preference F-2A category, they then shift to immediate-relative status. This status is retained even if they cross the age of 21 before immigrating. Some green card holder petitioners may have filed a single Form I-130 for their spouse, intending their children to immigrate as derivatives. However, it’s important to note that once these parents naturalize, separate I-130 petitions will be required for each child since the children will lose their derivative status. The prevailing position by USCIS is that these children need individual Form I-130 petitions submitted before they reach 21 to safeguard their immediate-relative status.
The CSPA also benefits the married children of U.S. citizens (direct beneficiaries in the third-preference category). If these married children get a divorce prior to turning 21, they transition to immediate-relative status. This status remains intact even if they reach 21 before immigrating, as it’s their age at the time of the marriage termination that governs. If they divorce after turning 21, the CSPA does not affect their status, and they will still move to the first-preference category.
Children of LPRs and Derivatives
The CSPA offers an alternative type of relief to children of green card holder parents who do not naturalize, as well as to derivative children in the preference categories.
Under the CSPA, the children’s age used for determining their preference category and derivative status will be reduced by the time period during which the I-130 petition was pending. In simpler terms, assess the actual age of the second-preference child, son, or daughter when the F-2A preference category becomes current for the given priority date. If they exceed the age of 21, the CSPA allows for their age to be adjusted based on the time the I-130 petition was under review. This adjustment can potentially enable them to retain their preferred status or derivative standing.
For instance, consider the scenario of a green card holder filing a Form I-130 for his son. If USCIS takes a year to approve the I-130 petition, the time period is subtracted from the son’s biological age (or added to the son’s date of birth) to determine his “adjusted age.” The adjusted age is then used when the second-preference F-2A category becomes current, or when the petition is approved if that’s later, to establish if he’s under 21. If the adjusted age is under 21, he will maintain F-2A status, regardless of his biological age, as long as he doesn’t marry.
For these children to maintain F-2A status, they must initiate the process of acquiring lawful permanent resident status within one year of visa availability. This could involve filing for adjustment of status, submitting Form DS-260, paying the immigrant visa fee, submitting Form I-864 or the affidavit of support fee, or filing Form I-824 for approved applications. The requirement can also be met by showing “extraordinary circumstances” that led to the delay. USCIS provided examples of such circumstances, including serious illness, mental or physical disability, legal disability, ineffective assistance of counsel, timely filing that was initially rejected by USCIS but later corrected, and the death or serious illness/incapacity of the applicant’s representative or immediate family member.
The CSPA principles also apply to derivative beneficiaries. If the adjusted age of a derivative beneficiary is under 21 when the principal beneficiary’s priority date becomes current or when the petition is approved, the derivative beneficiary will maintain status, even if they turn 21 later.
For example, if a U.S. citizen files a third-preference petition for his married son, and the son’s wife and minor daughter are derivatives, when the daughter turns 21, she loses derivative status. To determine if the child retains derivative status, you’d consider the derivative child’s adjusted age (biological age minus the time the I-130 petition was pending) on the date the third-preference visa became current. To maintain derivative status, the child must begin the process of adjusting status or consular processing within a year.
These CSPA provisions emphasize the importance of understanding the adjusted age and how it affects beneficiaries’ immigration status and options.
Relief for F-2B Beneficiaries When the Petitioner Naturalizes
The first-preference category often experiences longer backlogs than the second-preference F-2B category. Consequently, when the parents who petitioned for their over 21 years old sons and daughters naturalize, causing a conversion from F-2B to first preference, it inadvertently prolongs the waiting time for their visa to become available. To address this issue, the CSPA eliminates this discrepancy by allowing these beneficiaries to choose whether they want to automatically convert to the first preference or decline and remain in the F-2B category.
To initiate this choice, applicants for adjustment of status should submit a written request to the appropriate USCIS District Office with jurisdiction over the beneficiary’s residence. In the United States, this would typically be the local USCIS district office. The request can be submitted alongside the adjustment application and should include the names, dates of birth of the applicant and the petitioning parent, as well as the receipt number of the Form I-130 petition.
For those individuals who plan to go through the consular processing and wish to choose not to convert to the first preference category, the Department of State (DOS) has specific procedures. They should submit their request using the National Visa Center’s (NVC’s) online inquiry form. The NVC will then relay the request to USCIS and change the visa category back to F-2B once USCIS approval is obtained. If the case has already been sent to a U.S. consulate or embassy, the applicants should contact the consulate or embassy to submit the request on their behalf. The consular officer will then forward the request and process the visa application under the F-2B category upon receiving approval from USCIS.
Relief for Some F-2A Beneficiaries over 21 When the Petitioner Naturalizes
The possibility for children who have turned 21 but are still under 21 using their adjusted age to opt out of conversion when their parent naturalizes depends on their place of residence. Most of these children will automatically convert to the first preference category and will not have the option to opt out. The language of the CSPA statute permits an opt-out from the automatic conversion from F-2B to F-1, but it does not extend the opt-out provision from F-2A to F-1. If the child qualifies for the F-2A category on the date of the parent’s naturalization based on their adjusted age, they also qualify for immediate relative status due to that naturalization.
The enactment of the Child Status Protection Act (CSPA) had a significant impact on numerous cases that were in progress at the U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State (DOS) when the law came into effect. Section 8 of the CSPA explicitly states that the law applies to I-130 petitions (petition for alien relatives), applications for adjustment of status, and immigrant visa applications that were pending before these agencies on August 6, 2002. It also extends to I-130 petitions that were approved before August 6, 2002, provided no final decision had been reached regarding the subsequent adjustment of status or immigrant visa application.
Initially, USCIS and DOS asserted that the CSPA required the submission of an application for adjustment of status or an immigrant visa before August 6, 2002, for children with approved I-130 petitions who turned 21 before that date. This means that, according to their interpretation, the CSPA did not apply to such children if they didn’t have an application or petition pending on that specific date. However, a significant decision by the Board of Immigration Appeals (BIA) established a precedent by ruling that the CSPA should be applied retroactively.
Subsequently, the agencies changed their position and adopted the policy that if a child had not received a final denial on an application by August 6, 2002, the principles of the CSPA would be applicable. In essence, if there were no final rejections or decisions against an application by that date, the CSPA’s provisions would be considered, regardless of whether there were pending applications or petitions on August 6, 2002.