CSPA's "Opt Out" Provision

By: Jean S. Tinsay, Esq.

Understanding how immigrant visa numbers work can be confusing. Some are under the impression that by waiting to become a U.S. citizens, their unmarried children (21 years or older) will be able to come to the U.S. faster. Because of this, they wait to file for an immigrant petition until they become naturalized U.S. citizen. There are also those who file petitions for their unmarried children while they are permanent residents, then immediately naturalize thinking that by becoming U.S. citizens, their immigrant petitions will be upgraded. The Visa Bulletin which is published monthly by the Department of State provides information as to what immigrant numbers are available for each month. Only applicants who have a priority date earlier than the cut-off date will be able to apply for immigrant visas. The immigrant visa numbers for the Philippines in the family preference category for the month of October 2010 is provided below.

For example, an unmarried child (21 years or older) from the Philippines who is the beneficiary of a petition filed in August 2002 by his permanent resident parent falls under the second preference category (F2B). For October 2010, his priority date is already current since immigrant numbers are already available under the F2B preference category for those beneficiaries with priority dates of September 1, 2002 or earlier. However, if the parent had in the meantime become a U.S. citizen, the immigrant petition is automatically converted to the F1 category. As the table below shows, the immigrant numbers for this category are only available to those with priority dates of March 1, 1997 or earlier. This automatic conversion to the F1 category instead of speeding up the immigration process for the unmarried child actually causes a delay of 4-5 years.

1st Unmarried Sons and Daughters of Citizens ("F1")
2A Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents ("F2A")
2B Unmarried Sons and Daughters (21 years of age or older) ("F2B")
3rd Married Sons and Daughters of Citizens ("F3")
4th Brothers and Sisters of Adult Citizens (F4")

The passing of the Child Status Protection Act of 2002 ("CSPA") which took effect on August 6, 2002 provided relief for unmarried children (21 years or older) whose parents naturalized after filing of immigrant petitions. CSPA provides an "opt out" provision which allows the unmarried child to elect not to have his immigrant petition converted to the first preference (F1) category and allow him retain his place in the second preference (F 2B) category. The unmarried child can exercise the "opt out" anytime after his parent naturalizes by submitting a written request to the District Office having jurisdiction of his residence. In the example provided above, once the request is approved, the unmarried child retains his F2B preference category classification and will be able to proceed with immigrant visa processing since his priority date is already current.

Atty. Jean S. Tinsay is a partner in The Law Firm of Chua Tinsay and Vega (CTV) - a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max's Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; jtinsay@ctvattys.com
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