Seguritan US Immigration Articles

Opting-Out to Prevent Longer Wait for Visa

Because of the visa backlog, it is common for a lawful permanent resident (LPR) parent, usually after living in the U.S. for five years, to become a naturalized citizen while a child waits for a visa on the basis of an approved second preference petition.

Under the Child Status Protection Act (CSPA), when a permanent resident parent naturalizes the beneficiary in an F2B petition (unmarried sons and daughters of LPRs) automatically converts to the F1 (unmarried sons and daughters of U.S. citizens) category upon the naturalization of the parent.

The automatic conversion is good if you’re a national of any country – except for the Philippines. Based on the latest visa bulletin, for other countries a conversion from F2B to F1 is advantageous because the waiting time would be cut short by over one year (about 4 months for Mexico).

But for the Philippines, the cut-off date for F2B beneficiaries is September 1, 2001, while for F1 it is April 15, 1997. In other words, for Philippine nationals the conversion actually adds more than 4 years to the wait since the F1 category is more backlogged than F2B.

Section 6 of the CSPA remedies this inequity by allowing the F2B beneficiary to “opt-out” of the conversion by electing to remain an F2B beneficiary. This is done through a written request to the officer in charge of the appropriate U.S. embassy, who then issues a decision and sends it to the beneficiary and the Department of State’s visa issuance unit.

If the opt-out request is approved, the beneficiary’s eligibility will be determined as if the parent had never naturalized and the beneficiary will remain in F2B.

To illustrate, let’s say X is the 33-year old son of a Filipino mother who recently became a naturalized U.S. citizen. On August 30, 2001, the mother filed an I-130 petition on X’s behalf when X was only 23 years old. The F2B priority date is already current, but since his mother recently naturalized, X automatically moved to the F1 category where the waiting time is longer by over 4 years compared to F2B. X can avoid the backlog in F1 by opting out of the conversion by sending a formal request to the USCIS in Manila.

This provision of the CSPA applies retroactively, that is, even to those F2B preference petitions filed before the law was passed on August 6, 2002, and regardless of the age of the beneficiary. Note that the opting-out can be done even after the conversion takes place because the law specifically allows a conversion to be revoked.

It used to be that only beneficiaries of petitions initially filed in F2B could benefit from opting out, and not those who started out in F2A and later moved to F2B when they turned 21 years old. This interpretation resulted in older brothers and sisters being able to immigrate under F2B much earlier than their younger siblings who had to wait longer under F1.

To illustrate, say X in the example above was under 21 when his mother filed the I-130. Since he started out in the F2A category and converted to the F1 category when his mother naturalized, under the old interpretation of Section 6 he could not opt out of the conversion. He would have to remain under F1 and wait until a visa becomes available.

Because of the unfairness that resulted, in 2006 the USCIS reevaluated its reading of Section 6 and later allowed it to be applied to all beneficiaries 21 years and over in the F2B category, regardless of whether they started out as F2A or F2B.

In the example above, this means that it does not matter if X was under 21 or over 21 at the time the I-130 was filed by his mother. If he turns 21 before his mother naturalizes, his petition would be automatically transferred to F1 category, but he can then opt-out if it is more beneficial to remain in F2B.

New Report Shows A Very Long Wait for Green Card

According to a recent report released by the U.S. Department of State, the number of family-based applicants on the waiting list for immigrant visa numbers as of November 2009 was 3,369,455 while the number of employment-based applicants was 130,509.

These figures include the principal applicants or petition beneficiaries as well as their spouses and children entitled to derivative status. They do not include immediate relatives (spouse, minor unmarried children and parents of U.S. citizens) who are exempted from the numerical limitation.

Not included in the figures are applicants for adjustment of status. They also do not include those who failed to respond within a year to the visa application letter of the National Visa Center notifying them of the availability of visa numbers within a reasonable time. These cases are considered inactive.

The above figures indicate that the wait for obtaining permanent resident status is going to be long in most of the visa preferences. In some categories, the wait for applicants form the Philippines, India, China and Mexico will be decades.

U.S. immigration laws set an annual worldwide limit as well as a per county limit of immigrant visas issued. There is also a limit on each preference category. During the fiscal year 2010 which runs from October 1, 2009 through September 30, 2010, visas issued are no more than 226,000 in the family-sponsored preferences and approximately 150,000 in the employment-based preferences. The per country limit is approximately 26,260.

The top five countries with the highest number of waiting list registrants are as follows: Mexico – 1,178,761; Philippines – 482,694; China – 197,559; India – 194,954; and Vietnam – 184,692

The number of registrants under the family-based preferences (F) are broken down as follows: F-1 (unmarried sons and daughters of U.S. citizens) – 245,516; F2A (spouses and children of permanent residents) -324,864; F2B (adult sons and daughters of permanent residents) – 517,898; F3 (married sons and daughters of U.S. citizens) -553,280; and F4 (brothers and sisters of U.S. citizens) 1,727,897.

The numbers of registrants under the employment-based preferences (EB) are: EB1 (priority workers) – 3,601; EB2 (advanced degree professionals/persons of exceptional ability) – 6,296; EB3 (skilled workers) – 103, 448; EB3 (other workers) 16,311; EB4 (special immigrants) 529 and EB5 (employment creation) – 325.

Of the F1 registrants, Mexico ranks first with 63,628 followed by the Philippines with 35,789. The numbers may increase because of the automatic conversion of pending F2B into F1 upon the naturalization of the petitioner. The automatic conversion may be avoided by availing of opt-out provision under the Child Status Protection Act. Many Filipinos have taken advantage of this law by opting to remain under F-2B in order to avoid the longer wait under F1.

Mexico also ranks first in the F2A, F2B and F4 while the Philippines ranks first in the F-3 preference.

In the employment-based categories, the Philippines ranks first with 47,470 followed by India – 24,365; China – 13,649; South Korea – 7,725 and Mexico – 4,728. As mentioned above, these figures do not include the number of adjustment of status applicants. The report notes that 90% of all employment-based preference immigrants are currently being processed as adjustment of status cases at the USCIS offices.

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