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Thread: CSPA opt out - stay in F2A?

  1. #1
    I have question about the CSPA opt out provision when the parent naturalizes.
    I have a pending I-130 for my son. It was filed when he was under 21, second preference child (F2A). He is now over 21. I have applied for citizenship and will naturalize. When I do, the I-130 will automatically convert to the family-based first preference (F1) category (unmarried son or daughter of a United States citizen). Section 6 of the CSPA gives the option to opt-out from this conversion. (Originally, only petitions originally filed in F2B category could opt out, but now this has been amended to cover F2A also).

    My question:
    F2A category is faster than F1 (right now about 1 year). If we decide to exercise the opt-out provision, can he stay in F2A, since his adjustad age is under 21? Or will the opt out provision keep him in F2B? Can we use CSPA Section 6 (opt-out) and Section 2 (age on petition filing date) together so he can stay where he was originally, F2A? The CSPA states "the beneficiary's eligibility for family-based immigration will be determined as if his or her parent had never naturalized"ť. My interpretation of that would mean he can stay in F2A. Have this been tried before?
    Thanks

  2. #2
    If you will search through old threads, this issue has been raised several times in the past. There are critical factors to consider like the I-130 priority date and your country of origin before a good option should be recommended to you. Your best bet is to consult face-to-face with a competent immigration practitioner who should analyze your paperwork on the table.

  3. #3
    Originally posted by molly55:
    My question:
    If we decide to exercise the opt-out provision, can he stay in F2A, since his adjustad age is under 21? Or will the opt out provision keep him in F2B? Can we use CSPA Section 6 (opt-out) and Section 2 (age on petition filing date) together so he can stay where he was originally, F2A? The CSPA states "the beneficiary's eligibility for family-based immigration will be determined as if his or her parent had never naturalized"ť. My interpretation of that would mean he can stay in F2A. Have this been tried before?
    Thanks
    It looks like you studied CSPA. May I ask you what makes you say: "since his adjusted age is under 21"? As far as I know, his age for immigration purposes will only be known once PD becomes current (when we talk about F2A -> F2B). So, if you opt-out, he'll stay in F2A. When the PD becomes curent, it will be determined if he is still eligible for that category or will have to wait in F2B. If that happens, maybe you can at that time upgrade the petition to F1.

    I don't think you can pick and choose from different provisions. If you opt-out, it is like you had't naturalized. Child stays in F2A or, if ages-out, will be transfered to F2B. If you opt-out, I don't see how you can claim your child's age should be "locked" at the time you filed. That only applies when USC files for his/her child under 21. And here you are saying "I don't want to be considered USC (since son's age will be locked at the date of naturalization (over 21))" but "I would like benefits that USC have at the time they file for their children".

    Think about this: even the parents who upgrade their petition for children (do not opt-out) don't get the
    benefit of "age on filing date" for their children.

    The above is my understanding. By no means can I claim I am an expert in CSPA. It is a complex issue, and it would be the best if you consult a professional...

  4. #4
    Originally posted by aneri:
    It looks like you studied CSPA. May I ask you what makes you say: "since his adjusted age is under 21"? As far as I know, his age for immigration purposes will only be known once PD becomes current (when we talk about F2A -> F2B). So, if you opt-out, he'll stay in F2A. When the PD becomes curent, it will be determined if he is still eligible for that category or will have to wait in F2B. If that happens, maybe you can at that time upgrade the petition to F1.

    I don't think you can pick and choose from different provisions. If you opt-out, it is like you had't naturalized. Child stays in F2A or, if ages-out, will be transfered to F2B. If you opt-out, I don't see how you can claim your child's age should be "locked" at the time you filed. That only applies when USC files for his/her child under 21. And here you are saying "I don't want to be considered USC (since son's age will be locked at the date of naturalization (over 21))" but "I would like benefits that USC have at the time they file for their children".

    Think about this: even the parents who upgrade their petition for children (do not opt-out) don't get the
    benefit of "age on filing date" for their children.

    The above is my understanding. By no means can I claim I am an expert in CSPA. It is a complex issue, and it would be the best if you consult a professional...
    Hi Aneri, thanks for your reply. I didn't explain properly. I realize this is complicated. I am hoping to find a previous case like this. My son was 20 when I filed in April 2005, and will be at least 25 before a visa becomes available. Hopefully the petition will still be pending then so his age can be calculated using CSPA. As I understand it, they don't approve petitions like this until a visa becomes available. However, if they do process and approve the I-130 he will age out. He was only 3 months from turning 21 when I filed. F1 is a lot faster than F2B in my case, and F2A is the fastest.

    What I am hoping for is that an originally filed F2A beneficiary can stay in F2A (after calculating his age to be under 21 of course) and opting out of F1 conversion when parent naturalizes, and not be transferred to F2B after the opt-out. I hope you are right that he will stay in F2A.

  5. #5
    go to www.expatsvoice.org and search the thread titled Aging Out, you may find the answer there

  6. #6

  7. #7
    Three class action court cases for CSPA have/are being filed


    So, by monday there will be a total of 3 federal lawsuits filed on CSPA Section 203(h)(3).

    * Baughman & **** on May 21, 2008
    United States District Court
    Northern District of California

    * Reeves & Associates on June 20, 2008
    United States District Court
    Central District of California

    * Law Offices of Shusterman on Monday (June 23, 2008)
    United States District Court
    Central District of California

  8. #8
    Hi Molly,
    As others have stated, this is a complicated issue that is currently being litigated in class action lawsuits against the USCIS. You can find some information on these issues at http://www.immigrationportal.com/sho...d.php?t=165638
    Note: This is not legal advice. For legal advice contact a competent immigration attorney. http://asylumlaw.blogspot.com

  9. #9
    where do I send my opt out request? My PD is coming up. I am in the United States? Do I send it here in the state that I applied at? Or do I send it in Manila?

  10. #10
    You can have only one classification at a time. Select the classification that is best for you. You cannot change back.

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