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in January I discussed the Family-based 1st and 2nd preference immigrant
categories, and used that opportunity to explain how a provision in the Child
Status Protection Act (CSPA) allows the son or daughters of Permanent Residents
(FB2B) to “opt out” of the automatic conversion to the FB1 category when their
parent become U.S. Citizens. To review the information on CSPA “opt-out” provisions for Filipinos, click here.
I also warned in my January writing of how the cutoff date for FB1 was rapidly catching up with FB2B, so people SHOULD NOT REQUEST AN OPT-OUT from the automatic conversion until they first determine which category – FB1 or FB2B – will be the best choice for their priority date. (If some of these terms are confusing, you may wish to review Basicsand Tips for Reading the Visa Bulletin).
Well, it has happened. For the first time in 22 years, the cutoff date for Philippines FB1 is ahead of FB2B. Starting August 1, 2014, their is no longer a need to “opt-out” of the automatic conversion to FB1 when the petitioning parent becomes a U.S. Citizen. Instead, accept the automatic conversion to FB1 and take advantage of the somewhat shorter wait for an immigrant visa.
But there is a problem. Hundreds of Filipinos, either on their own or after receiving poor advice, prematurely requested their FB1 petition be downgraded back to FB2B, and now find themselves waiting longer for an immigrant visa than had they done nothing.
As of now there is no reliable fix for this problem, and a review of the law offers little hope. A permanent resident files a petition for an unmarried son or daughter over 20. By law, the petition is in the FB2B category. Then when the Permanent Resident petitioner becomes a U.S. citizen, the law automatically changes the petition to FB1 at the very moment of naturalization – UNLESS (thanks to the CSPA) either before or after the petition is approved, the son or daughter makes a written request to USCIS to remain or return to FB2B.
Once the written request is approved, the petition moves back to FB2B, and the law says the petition is FB2B. There is no law allowing the petition to return to FB1. In fact, CSPA emphasizes the finality of the decision by stating, “Where such an election has been made, any determination with respect to the son or daughter's eligibility for admission as a family- sponsored immigrant shall be made as if such naturalization had not taken place.” This phrase in the statute has the full force of law. Once the election is made, the petition is FB2B.
This problem is still new and has yet to be raised with USCIS as part of any public discussion. Conceivably, CIS could allow a beneficiary to withdraw the earlier request to return to FB2B, but that has yet to be tested. I know of two requests pending with USCIS to rescind a previous downgrade request. I will post the result when received.
I also warned in my January writing of how the cutoff date for FB1 was rapidly catching up with FB2B, so people SHOULD NOT REQUEST AN OPT-OUT from the automatic conversion until they first determine which category – FB1 or FB2B – will be the best choice for their priority date. (If some of these terms are confusing, you may wish to review Basicsand Tips for Reading the Visa Bulletin).
Well, it has happened. For the first time in 22 years, the cutoff date for Philippines FB1 is ahead of FB2B. Starting August 1, 2014, their is no longer a need to “opt-out” of the automatic conversion to FB1 when the petitioning parent becomes a U.S. Citizen. Instead, accept the automatic conversion to FB1 and take advantage of the somewhat shorter wait for an immigrant visa.
But there is a problem. Hundreds of Filipinos, either on their own or after receiving poor advice, prematurely requested their FB1 petition be downgraded back to FB2B, and now find themselves waiting longer for an immigrant visa than had they done nothing.
As of now there is no reliable fix for this problem, and a review of the law offers little hope. A permanent resident files a petition for an unmarried son or daughter over 20. By law, the petition is in the FB2B category. Then when the Permanent Resident petitioner becomes a U.S. citizen, the law automatically changes the petition to FB1 at the very moment of naturalization – UNLESS (thanks to the CSPA) either before or after the petition is approved, the son or daughter makes a written request to USCIS to remain or return to FB2B.
Once the written request is approved, the petition moves back to FB2B, and the law says the petition is FB2B. There is no law allowing the petition to return to FB1. In fact, CSPA emphasizes the finality of the decision by stating, “Where such an election has been made, any determination with respect to the son or daughter's eligibility for admission as a family- sponsored immigrant shall be made as if such naturalization had not taken place.” This phrase in the statute has the full force of law. Once the election is made, the petition is FB2B.
This problem is still new and has yet to be raised with USCIS as part of any public discussion. Conceivably, CIS could allow a beneficiary to withdraw the earlier request to return to FB2B, but that has yet to be tested. I know of two requests pending with USCIS to rescind a previous downgrade request. I will post the result when received.
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