Certain Petitions Still Harmed Upon Naturalization of Petitioner

October 18, 2011

      The immigration laws of the United States are so complex that a law intended to fix a problem experienced by many individuals continues to still cause harm in certain situations. Believing that Congress had fixed the problem, individuals who could be negatively impacted do not seek out advice and may inadvertently cause harm to a loved one’s visa petition.

     The law that continues to cause so much confusion is the Child Status Protection Act (CSPA). In particular is the provision regarding the impact on a relative petition upon the naturalization of the Petitioner. There are instances in which the waiting period is shorter when the Petitioner on a relative petition is a lawful permanent resident rather than a US citizen. Accordingly, there are situations where an individual would be required to wait longer to obtain a visa if the Petitioner becomes a US citizen.

     Recognizing that this dilemma caused many permanent residents to delay becoming US citizens, Congress included an “opt-out” provision in the CSPA that allows an individual to stay in the shorter waiting list of petitioners who are permanent residents even after the petitioner has become a naturalized US citizen. While this has been a tremendous benefit to many who wish to become US citizens, it has unfortunately unknowingly caused problems for many who do realize that they are unable to take advantage of this “opt-out” provision in the CSPA.

     The type of relative petition that is causing great problems are those that are originally filed by a permanent resident for an unmarried child under the age of 21. This relative petition falls under the classification known as the F2A family preference category. When the Petitioner in an F2A preference petition becomes a naturalized US citizen, the category that the petition falls under automatically changes to either the immediate relative category or F1 preference category, depending on the age of the Beneficiary at the time the Petitioner naturalizes. Conversion to the immediate relative is always beneficial, as well as conversion to the F1 preference category, unless an individual is from the Philippines.

     For Filipinos, conversion to the F1 preference category adds approximately 5 years to a waiting period that is already averaging about 10 years. Under the CSPA, the laws are clear that an individual can “opt out” of the F1 category and request that he remain in the F2B category. However, the law is still very unclear as to whether an individual can “opt out” of the F1 category and remain in the much shorter F2A category.

     Regrettably, the Board of Immigration Appeals (BIA) recently ruled that an individual may not “opt out” of the F1 category back to the F2A category. Matter of Zamora-Molina, 25 I&N Dec. 606 (BIA Oct. 6, 2011). In that case, the inability to “opt out” from the F1 category back to the F2A category likely adds more than 12 years to Mr. Molina-Zamora’s wait for obtaining a green card! Although the BIA recognized the unfairness in penalizing Mr. Molina-Zamora due to his Petitioner becoming a US citizen, the court ruled that it did not have the authority to delve into the constitutional issues associated with this provision of the CSPA.

     Rather, individuals who may have inadvertently negatively impacted a relative petition by becoming a US citizen still have hope in seeking a favorable interpretation that allows the “opt out” provision in this scenario in the federal courts, where the courts have jurisdiction over the constitutional issues. Although it is a difficult journey, it may be worthwhile given the tremendous harm that otherwise may result.

     Naturally, avoiding potential problems in visa petitions by consulting with an experienced attorney is always the best course of action. Although the CSPA laws are intended to remove concerns regarding individuals becoming US citizens, there are still some situations that may actually harm individuals and therefore require careful analysis and review. Being separated from a loved one is extremely difficult, so great care must be exercised when dealing with any situation that could lead to often very lengthy delays in being reunited.