Most entries below contain actual legal discussions of events directly related to Filipinos in or immigrating to the United States.
Remember- These writings are provided for general information only and do not constitute legal advice, nor do they create any attorney-client relationship. Each person's needs and requirements are different and require a personal evaluation to determine the proper legal course of action.

Friday, January 31, 2014

Philippines FB1, FB2B, and Opt Out Cases

Immigration law is complicated.  The more you understand your case, the less likely you will be taken advantage of or follow poor advice.

First, a few background facts. 

1.  FB1 is the family immigrant category for a petition beneficiary who is the unmarried son or daughter (at least 21 or over) of a U.S. Citizen.

2.  FB2B is the family immigrant category for a petition beneficiary who is the unmarried son or daughter (at least 21 or over) of Permanent Residents.

3.  If a Permanent Resident files a FB2B petition, and then later becomes a U.S. Citizen, the FB2B petition automatically changes to an FB1 petition.  This is called "automatic conversion".

Since July 1, 1992, the wait to get a green card for the Filipino son/daughter of a U.S. Citizen was longer than for the son/daughter of a Permanent Resident.  This is still true today.  Next month, February 2014, immigrant visas will finally be available to FB1 beneficiaries whose petition was August 15, 2001, yet FB2B beneficiaries from May 23, 2003 can now become Permanent Residents.  This is backwards of what it should be, but since Filipinos became naturalized US Citizens at a much higher rate then other countries, the demand in FB1 increased while demand in FB2 decreased.

In 2002, Congress provided a fix for this problem by creating a law giving FB2B beneficiaries a one-time option to "opt out" of the automatic conversion to FB-1 after their Permanent Resident parent becomes a U.S. Citizen.  The opt out request is nothing more than a simple letter to the USCIS office that approved the petition.  However, Congress did not provide a way to undo an opt out.

This opting-out has worked well for ten years as FB1 is still slower than FB2B. But that may change.  It is very possible that sometime in the next few years, FB1 cutoff dates will overtake and pass FB2B, making FB1 the category with the shorter wait.  Beneficiaries whose FB2B priority dates are still many years away, and who followed bad advice and already opted out of FB1, may find themselves stuck in the slower FB2B category!

Two pieces of general advice:

1.  In most cases, if you are a Permanent Resident now, and have an older unmarried son or daughter, file the FB2 petition now and get them in the line for an immigrant visa.  Remember, it the date the petition is filed, not the date it is approved, that marks their place in line for a visa.  USCIS may take 2-4 years before approving the petition, but it does not matter.  USCIS knows it will be many years before a visa is available so they take their time, and just the filing gets them in line as long as the petition is approved later.

2.  DO NOT OPT OUT UNTIL YOU SEE WHICH CATEGORY WILL BECOME CURRENT FIRST!  There is no reason to change back to FB2B years before your priority date is current.  Wait until you see which category is advancing quicker, then opt out of FB1 only if FB2B is still the best choice.

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