“Opting Out” Under the Child Status Protection Act
Published: April 6, 2011
The Child Status Protection Act (CSPA) was enacted some 9 years ago with the primary aim of protecting eligibility for child beneficiaries of immigration filings who are nearing the age of 21. Prior to the CSPA, 21 was the age of visa doom, with children turning into pumpkins and becoming disqualified from deriving immediate permanent residence benefits through their parents under various immigration law avenues, usually resulting in many more years of waiting for the “aged out” child. The CSPA also contains an “Opt-Out” provision – having nothing to do with children turning 21, to protect Family 2B beneficiaries (adult, unmarried children of lawful permanent residents) whose petitions automatically convert to Family First Preference (adult single child of U.S. citizen) when their petitioning parent becomes a U.S. citizen, but where the beneficiary faces a longer backlog in the Family First Preference. At this time, due to the peculiarities arising out of heavy visa demand and longer backlogs for Filipinos seeking to reside in the U.S., only beneficiaries from the Philippines are negatively impacted by automatic conversion of a visa petition to Family First Preference.
For family based immigration beneficiaries petitioned by a permanent resident parent, news of their parent’s naturalization is in almost all cases great news since the wait for visa availability in the Family First Preference (adult single child of a U.S. citizen) is significantly shorter that the Family 2B visa line. For now, for Family 2B beneficiaries from the Philippines though, this is not the case, since the demand for family based immigrant visas in the Family First Preference is even heavier, with the Family First Pref. visa line longer than the Family 2B line for Filipinos.
So what does a Filipino Family 2B preference beneficiary do when their petitioning parent becomes a U.S. citizen? Whether the beneficiary is in the U.S. or overseas awaiting visa availability, the beneficiary must write a letter to the U.S. Department of Homeland Security/Citizenship and Immigration Services office at the U.S. Embassy in Manila, and specifically request that they be Opted-Out of automatic conversion of their family petition to Family First Preference. If the Opt Out request letter meets all requirements, the DHS/CIS Officer in Charge will respond with a letter official confirming the acceptance of the Opt Out request. From there it is up to the overseas beneficiaries to present a copy of the DHS/CIS correspondence to the U.S. Department of State (usually the National Visa Center) to make sure their visa petition continues to be treated as a Family 2B petition, and not subject to the longer Family First Preference line. For beneficiaries in the U.S., the Opt Out confirmation should be presented when their application for adjustment of status is filed, upon visa availability in the Family 2B preference.
PUBLISHED January 26, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois