How Your Naturalization Affects Your Child’s Application for a U.S. Green Card

Make sure that becoming a U.S. citizen doesn't actually delay your child's progress toward U.S. residence.

U.S. immigration law allows certain people to apply for their relatives to come to the United States with an immigrant visa and to receive a green card. But you can't just file for any relative. Who you can apply for and how long the immigration process will take depends on whether you, the U.S. "petitioner," are a lawful permanent resident (an LPR, with a green card) or a U.S. citizen. And the situation can change dramatically as time goes by and two significant things possibly happen:

  • you go from LPR to naturalized citizen, or
  • your child turns 21.

This article will alert you to ways the process can either speed up or bog down as a result, and how, if possible, to avoid the latter.

Basic Rules on Petitioning for Children to Immigrate to the U.S.

Let's assume that you have a green card now (are a U.S. lawful permanent resident). U.S. immigration law lets you apply for immigrant visas (green cards) on behalf of your foreign-born spouse, your children under the age of 21 (as "derivatives" named in the spouse's visa petition), and your unmarried children over the age of 21 (by filing separate visa petitions for them). These applications fall into two categories: "F2A" for spouses and children under 21, and "F2B" for unmarried children over the age of 21.

As alluded to, you start the immigration process for any of these family members by filing a visa petition, using USCIS Form I-130. After U.S. Citizenship and Immigration Services (USCIS) approves an I-130, the family members ("beneficiaries") will be placed onto a waiting list. They are in the so-called "family preference" categories of the visa system, as opposed to being "immediate relatives" of a U.S. citizen. Only limited numbers of visas are allotted per year to preference relatives.

Family preference relatives face annual limits on visas, and thus potentially years-long waits, depending on demand. (How Long Is the Wait for Your Priority Date to Become Current provides details.)

How a Parent's Naturalization Affects Children Named as Derivatives on an I-130

When a permanent resident files an I-130 petition for a spouse, they don't have to submit (and pay filing fees for) separate I-130 petitions for their minor children. Simply naming these children on the immigrating spouse's I-130 is enough to launch the children into the immigration process (though later in the process, children will need to submit application forms of their own).

But when a petitioner naturalizes, their children can no longer ride as "derivatives" on the parent's I-130. They still have a path to immigration, but their application process stops dead until the U.S. green-card holding parent files separate I-130 petitions for them (and pays the latest fees for those). The children won't have to worry about what their priority dates will be if they're still under 21, because of their new status as "immediate relatives" of a U.S. citizen. But if they're over 21, they'll get a new priority date based on the date the I-130 was filed, landing them on another long waiting list.

If derivative children are getting close to 21 and the parent is thinking about naturalizing, it can be a good idea to file separate I-130s for them sooner rather than later.

How Turning 21 Affects the Child of an LPR

In the past, the typically long waits for immigrant visas created problems for children of LPRs turning 21, because they dropped into category F2B, where the waits tend to be longer than in F2A.

To deal with this, Congress passed the Child Status Protection Act (CSPA). Under that law, the F2A child's age freezes as of the filing date of the I-130 petition. So, a child whose petition was filed prior to the child's 21st birthday remains, on paper, a child under the age of 21 throughout the whole process in category 2A, on one key condition: that the parent remains an LPR. But this article is focused on the results of the parent naturalizing, as described next.

How Turning 21 Affects the Child of a Newly Naturalized U.S. Citizen

After filing an I-130 petition for a child, the lawful permanent resident petitioner might become eligible to apply for naturalization. For most purposes, this is a good idea. Becoming a citizen means you can petition for more categories of family member. And if you've already petitioned for a spouse, that I-130 petition will convert to an application for an immediate relative of a U.S. citizen, eliminating the waiting period for an available visa.

For a child, however, the effect of your naturalizing isn't guaranteed. It will depend on the child's age when it occurs. The U.S. government counts the child's age from the date of naturalization instead of the date of filing the application. For a child nearing the age of 21, this can cause the application to change category, which doesn't always speed things up, as described below.

Naturalizing If the Child Is Still Under 21

If the child is still under the age of 21 on the date that the LPR parent naturalizes, and the child has a separate I-130 approval, then the petition converts just like that of a spouse. That means that the child's application moves from the "F2A" category to "immediate relative" of a U.S. citizen. Or as discussed above, if no separate I-130 was submitted, the LPR can file a new I-130 for the child at this time (though this will introduce delays as you wait for USCIS approval).

The good news is, there is no waiting list for immediate relative visas or green cards. (You'll get the idea from reading How Becoming a U.S. Citizen Can Speed Up Immigration for Foreign Spouse.)

Naturalizing If the Child Was Over 21 When I-130 Filed

If your child is over the age of 21 (thus called a "son or daughter" in legal lingo), and already has an application in the F2B category, naturalizing might automatically put the child into category "F1," for unmarried sons and daughters of U.S. citizens over the age of 21.

That could present a problem. There has been more demand for F1 immigrant visas in recent years than for F2B visas, with the result that the waitlist tends to move slowly (though this could change). The difference can be several years' worth. So, by naturalizing, the petitioner could seriously delay the child's application for a U.S. green card.

Fortunately, USCIS will sometimes allow children to "opt out" of this category change.

The first thing to do is to check the current Visa Bulletin to confirm whether the F2B and F1 categories have different wait times. Look at the dates next to each category in the first chart that appears on the Visa Bulletin. A petition is eligible for further processing only when the date matches, or is before, the date in that chart.

If the F2B category has a date that is less time from the current date than the F1 category, or says "C" for current, you will probably want to opt out of the category change, so that the application processes more quickly.

To do this, the beneficiary (your child) must send a signed letter to the USCIS office that processed the I-130 asking to opt out of the petition. This is one of the only cases where a beneficiary has to contact USCIS directly.

Or, if the case is already being handled by the National Visa Center (NVC) the applicant should submit requests using NVC's online inquiry form. NVC will forward the request to USCIS and if USCIS approves it, change the child's visa category back to F2B.

Naturalizing If the Child Was Under 21 When I-130 Filed

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 several years. 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.

The change is even more dramatic when the child is from Mexico or the Philippines. Both of those countries have waitlists in the F1 category that typically average at least ten years.

For petitioners who live within the jurisdiction of the 9th Circuit Court of Appeals—which includes the West Coast of the U.S., as well as Idaho, Colorado, Nevada, Alaska, and Montana—there is good news. The Court addressed this problem in 2018, in a case called Tovar v. Sessions. It found that the government was incorrectly interpreting the law. So, in that jurisdiction, F2A category applications now automatically convert into petitions for an immediate relative of a U.S. citizen even if the child turned 21 before the petitioner became a citizen.

A similar result was reached in the 2nd Circuit, in the case of Cuthill v. Blinken. That circuit covers Connecticut, Vermont, and New York.

If you are a petitioner living in another jurisdiction, however, the only way to avoid your F2A child being switched to category F1 when you naturalize is to hold off on seeking citizenship. Wait until after your child has come to the United States as an F2A green card holder.

Getting Legal Help

This is a complicated area of law, which can have severe consequences for your immigration petition for a relative. Understanding the potential issues helps you to navigate this process easily so that your children can come to the U.S. as quickly as possible. A lawyer might be able to help strategize approaches such as filing an I-130 for a child in advance of your naturalization or taking steps to postpone the naturalization interview or swearing in.

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