How does upgrade/convert and approved petition?

[gc20040]

I am the beneficiary of an approved I-130 that was petitioned by my
father 7 years ago in the family preference 2b (unmarried son/daughter
of perm residents). He recently became a naturilized citizen. Since I
remain unmarried, I understand that the petition automatically
converts from F2B to F1 (unmarried son/daughter of US citizens). Is
this true?

If so, and since I am currently in the U.S. (on an H-1) what is the
process of adjusting my status. Do I need to tell USCIS to convert the
petition before I can adjust my status or can I simply send in my AOS
packet that includes the approved (old) petition with my father's
naturilization certificate?

Your response is greatly appreciated.

[LucyMO]

it's not automatically upgraded. Your father needs to send a request with proper documentation to the office handling your case. Then, upon approval of the request you can apply for AOS.

[gc20040]

Thanks Lucy for your response

I just read the relevant CFR on this and according to 8 CFR 204.2 (i) (3), it appears that conversion is automatic. Below is the relevant section with my highligting for emphasis.

[I][INDENT]8 CFR (i) Automatic conversion of preference classification.


(3) By the petitioner's naturalization. Effective upon the date of naturalization of a petitioner who had been lawfully admitted for permanent residence, a currently valid petition according preference status under section 203(a)(2) of the Act to the petitioner's spouse and unmarried children under twenty-one years of age shall be regarded as having been approved for immediate relative status under section 201(b) of the Act. Similarly, a currently valid petition according preference status under section 203(a)(2) of the Act for the unmarried son or daughter over twenty-one years of age shall be regarded as having been approved under section 203(a)(1) of the Act. ....

So I am not sure what it is I will need for CIS to approve if the petition has already been approved and the petition automatically converts upon petitioners naturalization. Seems to me that I should be able to file an I-485 by subimitting my approved I-130, my father's naturatilization certificate and a cover letter explaining it all.

I will check with a lawyer, but thanks again for your help. If anyone else has any thoughts I would welcome them.

[usnycus]

Conversion might be automatic but you still need to notify USCIS with the new information. Only then they will do something about it.

Originally Posted by gc20040

Thanks Lucy for your response

I just read the relevant CFR on this and according to 8 CFR 204.2 (i) (3), it appears that conversion is automatic. Below is the relevant section with my highligting for emphasis.

[I][INDENT]8 CFR (i) Automatic conversion of preference classification.


(3) By the petitioner's naturalization. Effective upon the date of naturalization of a petitioner who had been lawfully admitted for permanent residence, a currently valid petition according preference status under section 203(a)(2) of the Act to the petitioner's spouse and unmarried children under twenty-one years of age shall be regarded as having been approved for immediate relative status under section 201(b) of the Act. Similarly, a currently valid petition according preference status under section 203(a)(2) of the Act for the unmarried son or daughter over twenty-one years of age shall be regarded as having been approved under section 203(a)(1) of the Act. ....

So I am not sure what it is I will need for CIS to approve if the petition has already been approved and the petition automatically converts upon petitioners naturalization. Seems to me that I should be able to file an I-485 by subimitting my approved I-130, my father's naturatilization certificate and a cover letter explaining it all.

I will check with a lawyer, but thanks again for your help. If anyone else has any thoughts I would welcome them.

[gc20040]

So if send them a letter (and my father's natz certificate) asking them to convert the petition from F2B to F1, what will they send me back? A new I-797A?

Has anyone have actually done this and can speak from experience?

[usnycus]

Your father needs to make that request and many have done cases like this in past.

Originally Posted by gc20040

So if send them a letter (and my father's natz certificate) asking them to convert the petition from F2B to F1, what will they send me back? A new I-797A?

Has anyone have actually done this and can speak from experience?

[gc20040]

I realize that if I were outside the US, my father would have had to send the original approved petition along with his naturalizaztion certificate and simply ask NVC to initiate consular processing.

But considering that I am in the US, and the regulation clearly says that if the petition has alread been approved (with a priority of Jan 1997) and automatically converted to F1 and "shall be regarded as being approved" for F1 what is it that I am asking to USCIS to do? Also, note that my priority date (1997) is much earlier then the current cuttoff for people in the F1 category (2000) so I should be able to adjust my status right away.

I still don't see why I need to inform USCIS before I can adjust my status.

[usnycus]

Just got following information:

"If you are approved in one category and if your and/or your sponsor's status changes, you are automatically converted from one category into another and it is not necessary to file a new petition. For example, if a lawful permanent resident files an F2A petition for his spouse, and then later becomes a U.S. citizen, the F2A approval is automatically converted into an immediate relative petition."

Guess you can go ahead and file I-485. Attach naturalization certificate as well letter explaining changed scenario.

[romit]

Originally Posted by usnycus

Just got following information:

"If you are approved in one category and if your and/or your sponsor's status changes, you are automatically converted from one category into another and it is not necessary to file a new petition. For example, if a lawful permanent resident files an F2A petition for his spouse, and then later becomes a U.S. citizen, the F2A approval is automatically converted into an immediate relative petition."

Guess you can go ahead and file I-485. Attach naturalization certificate as well letter explaining changed scenario.

I agree with this. I did exactly same.

[wanksta1]

Section 6 of Child Status Protection Act states that if your permanent resident parent files a petition for you when you are over 21 (F2B), and your parent naturalizes, you can request in handwriting that such conversion not to occur (from F2B to F1). it also depends what country you're from. if you're from india, even if you are in th US under a different visa it would be to your advantage that the conversion of your category take place from F2B to F1 (go to www.travel.state.gov to check on Visa Bulletin). if you're from the philippines, you can utilize Section 6 of CSPA to retain your category.

[gc20040]

Thanks for the info. However since I am not from the Phillippines, I guess this does not affect me.