Thursday, August 19, 2010

Problem with parents naturalizing

CSPA & Naturalization
By Michael J. Gurfinkel, Esq.

The Child Status Protection Act (CSPA) was a law that allowed certain children who “aged out” (turned 21) to still be processed for green cards as a “minor child”. There are three important sections in CSPA relating to children: Section 2, 3, and 6. While in many situations, a parent’s naturalization may help the child obtain CSPA benefits, there are other situations where the parents should not naturalize.

Section 2: Section 2 deals with a parent naturalizing before the child turns 21, and has petitioned the child before the child’s 21st birthday:

- The parent was a U.S. Citizen, and files a petition for his or her child before the child is 21 years of aged.
- The parent is an immigrant, files a petition for his or her minor child in the F-2A category, and then naturalizes before the child is 21 years old.
- The U.S Citizen parent petitions a married minor child (i.e. the child got married when he/she was 19 years of age), and the child terminates his marriage (i.e. through divorce, annulment, etc.) before the child is 21 years of age.

In each of these situations, the child’s age would be “locked in” as being under 21 years of age, and the child could continue to be processed as an “immediate relative” minor child for years after his 21st birthday, so long as he remains single. There is no mathematical calculation for children covered by Section 2, nor must they seek to acquire a visa within one year. So, it is good for a parent to naturalize before his child is 21 in Section 2 cases.

Section 3: Section 3 deals with minor children of immigrants (category F-2A) or derivative beneficiaries of their parent’s family or employment based petition. The child’s age is computed based on a mathematical formula, whereby you:

- Take the date the petition was filed.
- Take the date the petition was approved.
- Calculate how long it took USCIS, from the date of filing to the date of approval (i.e. did it take 1 month? 1 year? 2 years? for USCIS to approve the I-130 or I-140 petition?).
- Determine when the priority date on the case became “current” (or visa became available.)
- Determine how old the child was on the date that the priority date became current (i.e. 21 years 8 months? 23 years old? etc).
- Subtract from the child’s age how long it took USCIS to approved the petition (i.e. if the child was 21 years 8 months old, when the priority date became current, but it took USCIS 9 months to approved the petition, if you subtract 9 months from the child’s age, the child will be under 21).
- Finally, make sure the child pursues or applies for his/her visa within 1 year of when it becomes available.

If the child’s age under Section 3 is determined to be under 21, based on the foregoing mathematical computation, then the child’s age would be “locked in” as being a minor child, and he would be eligible for benefits under the Child Status Protection Act.

However, it is very important that if your child locks in his/her age under Section 3, then the parents should not naturalize once the child turns 21. This is because a child cannot lock in his/her age under Section 3, and then have the parent naturalize, since they would not be eligible for benefits under Section 2. (I.e. you cannot lock the child’s age in under Section 3, and then transfer the case to Section 2 upon the parent’s naturalization.)

I know of some cases where a parent had obtained a green card through labor certification, and their child qualified under the mathematical calculation of Section 3, thus locking in the child’s age at being under 21. After the child turned 21, the parent became eligible for naturalization, and the parent took that oath of citizenship after the child was 21. USCIS took the position that naturalization after the child turned 21 years of age terminated the child’s CSPA benefits. Remember, for Section 2 cases, the parent must naturalize BEFORE the child’s 21st birthday, not AFTER.

Section 6: In Section 6 cases, an immigrant parent files a petition in either the F-2A or F-2B category (single child of green card holder.) The child is 21 (or later turns 21), and his age cannot be calculated as being under 21 per the Section 3 computations. So, the child has “aged out,” cannot benefit from Section 3, and is stuck in the F-2B category. In years past, the F-2B category was always FASTER than F-1 (single child of US citizen), such that if the parent filed the petition as F-2B and then naturalized, it added several more years to the child’s waiting time for a green card. So, Filipino parents had to hold off from naturalizing. Section 6 enables Filipino parents to naturalize, but the child may elect to remain in the faster F-2B category, rather than having the F-2B petition converted to F-1. But this applies only if the petition was initially filed while the parent was an immigrant. Section 6 wont apply if the parent was already a citizen at the time the petition was filed.

As you can see, CSPA, as well as other U.S. immigration laws, can be very complex, confusing, and detailed. That is why it is so important that you seek the advice of a reputable attorney, who can evaluate each and every step you take in connection with pursuing immigration benefits for yourself and for your family. One misstep or wrong calculation on your part (due to your lack of knowledge of the intricacies of the laws) can have devastating consequences on your child.


No comments:

Post a Comment