U.S. immigration law allows certain people to apply for their relatives to come to the United States with an immigrant visa or to receive a green card. But you can’t just file for any relative. Who you can apply for and how long the process will take depends on whether you, the U.S. “petitioner,” are a lawful permanent resident (an LPR, with a green card) or a citizen. And the situation can change dramatically as time goes by and two significant things possibly happen:
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.
Let’s assume that you have a green card now (are a lawful permanent resident). U.S. immigration law lets you apply for immigrant visas (green cards) on behalf of your foreign-born spouse, children under the age of 21, and unmarried children over the age of 21. These applications fall into two categories: “F2A” for spouses and children under 21,and “F2B” for unmarried children over the age of 21.
After you start the immigration process for any of these relatives (by filing a petition on USCIS Form I-130), they will likely be placed onto a waiting list. That’s because they are in the so-called “family preference” categories of the visa system, as opposed to being “immediate relatives” of a U.S. citizen.
Family preference relatives face annual limits on visas, and thus long waits. (How Long Is the Wait for Your Priority Date to Become Current provides details.)
In the past, the long waits 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 his or her 21st birthday remains, on paper, a child under the age of 21 throughout the whole process, in category 2A; if, that is, the parent remains an LPR.
After filing an I-130 petition, the lawful permanent resident petitioner might become eligible to apply for naturalization. For most purposes, this is a good idea. Becoming a citizen means that you can petition for more people. And if you're already petitioned for a spouse, that I-130 petition will convert to an application for an immediate relative of a U.S. citizen, and the process will move more quickly thereafter.
For a child, however, the effect of your naturalizing isn't guaranteed. It will depend on the child’s age when it occurs. When a petitioner naturalizes, the government counts the child’s age from the date of naturalization instead of the date of filing the application. This can cause the application to change category, which doesn’t always speed things up, as described below.
If the child is still under the age of 21 on the date that the LPR parent naturalizes, 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.
This is good, as immediate relative applications process quickly and there is no waiting list for visas or green cards. (You'll get the idea from reading, How Becoming a U.S. Citizen Speeds Up Immigration for Foreign Spouse.)
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 it 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 in the future). 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, there is a way 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, 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.
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.
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 of over ten years (2019 average).
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.
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.
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.