Children ‘initially’ petitioned as F-2A now eligible for CSPA Section 6 OPT-OUT/Election

On June 14, 2006, in a dramatic reversal of policy, the USCIS issued a memo, now allowing children whose petitions were "initially filed" in category F-2A (single, minor children of green card holder parents) to remain in the "faster" F-2B category (single adult child of green card holder parent), if they turned 21 and their parent naturalizes.

This memo reverses the USCIS’s very harsh and restrictive interpretation of section 6 of the Child Status Protection Act (CSPA), where USCIS allowed only sons and daughters whose petitions were "initially filed" when they were over 21 (F-2B) to avail of CSPA section 6, but denied such benefits to children whose petitions were initially filed in the F-2A category, and then converted to F-2B when they turned 21.

By way of background, for Filipinos, it takes many years longer for US citizens to petition their adult single children (category F-1) than it does for green card holders to petition their adult single children (category F-2B). Many immigrant parents, thinking it would be faster if they naturalized, took the oath of citizenship, only to learn the tragic truth: because they naturalized, their adult single children would now have to wait five or more additional years, than they would if the parent remained a green card holder.

To remedy this situation, in August 2002, Congress passed the Child Status Protection Act, or CSPA. Section 6 of CSPA allows adult single children whose petitioning parent naturalizes to remain in the faster F-2B category.

However, in March, 2004, USCIS came out with a memo, stating that CSPA section 6 opt-out/election would apply only if the petition was "initially filed" as F-2B.

However, if the immigrant parent had petitioned his child when the child was under 21 (F-2A), and then the child turned 21, (thereby converting the petition category from F-2A to F-2B), the child would not be eligible under CSPA Section 6 to "elect" to remain in the F-2B category if the petitioner later naturalized. The reasoning was that the petition was not initially filed as F-2B, but instead was initially filed as F-2A.

In its most recent memo, USCIS reversed or amended that narrow and restrictive interpretation. USCIS realized that there would be situations where immigrant parents petitioned both their adult and minor children, and then naturalized. In that situation, it turned out that the adult children would benefit from CSPA section 6, but the minor children (who aged out and later converted to F-2B) would be left behind.

Under this new memo, even if you initially petitioned your child when your child was under 21 (category F-2A), the child then turned 21 (thereby converting the petition to F-2B) and you thereafter naturalized (converting the petition to category F-1), where the waiting is years longer), the child can still take advantage of CSPA section 6 and elect to remain in the faster F-2B category.

If your child’s CSPA section 6 election was denied by USCIS because your petition was not "initially filed" as F-2B, you should seek the advice of a reputable attorney, who could assist you in reversing that denial, and help you bring your child to join you in the US, and end the years of separation.

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