A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Friday, October 7, 2011

BIA held F2A visa beneficiaries may not "opt out" of automatic conversion to F1

The Board of Immigration Appeal (BIA) has just held that a Mexico-born visa beneficiary is not allowed to retain his F2A preference status by opting out of automatic conversion to the F1 category as a son of a United States citizen upon his parent’s naturalization. Matter of ZAMORA-MOLINA, ID 3729, 25 I&N Dec. 606 (BIA 2011)

The mother of the beneficiary son filed a visa petition in 2004 on his behalf when he was under the age of 21. In 2007 after pending for more than two years, the visa petition was approved but priority date was not current. Subsequently, before the priority date became current, the mother naturalized and became a U.S. citizen in 2009 when the son was 22 years of age.  However, his age as calculated under the Child Status Protection Act (CSPA) remained under 21 after subtracting the period of time the visa petition was pending.

The regulation automatically converts a F2A (minor unmarried child of resident parent) and F2B (adult unmarried child of resident parent) petition to be an immediate relative and F1 petition respectively upon the naturalization of the petitioner. 8 C.F.R. § 204.2(i)(3)

The son argued that he should be able to adjust as an immediate relative of a U.S. citizen mother by virtue of his CSPA age.  The BIA held that his actual age, not CSPA age, should be used in determining whether he is an immediate relative pursuant to Section 201(f)(2) of the Immigration and Nationality Act.  Because his actual age on the date of his mother's naturalization was over 21, he cannot be classified as an immediate relative.

The mother and son also argue that they should be able to "opt out" of the automatic conversion to F1 visa category, which has a much longer waiting time, than their previous F2A category.

Section 6 of CSPA, also known as Section 204(k)(2) of the INA, allows an alien to affirmatively opt out of automatic conversion from the F2B visa category (unmarried sons and daughters of LPR) to the F1 category by filing a written statement with the Attorney General.  However, BIA held that there is no provision of law that allows an applicant to "opt out" of automatic conversion from F2A to F1 when the petitioner-parent becomes a citizen. Hence, the Board held that the son in this case is not able to adjust his status by using the current cut-off date under the Mexico F2A preference category. 

One argument that could have been made by the son was that his case was automatically converted from F2A to F2B by virtue of his turning 21 and before his mother naturalized and, therefore, his case being a F2B petition should be entitled to the "opt out" provision of Section 204(k)(2).  However, Section 203(h)(3), another controversial section of CSPA seems to suggest that automatic conversion is not available if the beneficiary's CSPA age is under 21, which is the case here.

This is a very important decision on a controversial issue.  BIA did not address the Equal Protection argument raised by the son as it lacks authority to rule on Constitutional issues. However, the issue is hardly settled and will likely be revisited by a federal court soon.

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