Child Is Under 21 when Petition is Filed but Over 21 when Petitioner Naturalizes
Under current law, as well as that existing before passage of the CSPA, an LPR parent's I-130 petition filed on behalf of an unmarried child under 21 will automatically convert from second preference 2A to first preference when the LPR parent naturalizes if the child had turned 21 before the petitioner naturalized. The petition may have converted from 2A to 2B upon the child turning 21, or it may have stayed in the 2A category because the beneficiary's adjusted age is under 21 after applying CSPA section 3 principles. But in either case it will convert to the first preference upon the parent's naturalizing.
With respect to CSPA section 6, USCIS originally interpreted the statutory language narrowly. The agency decided that the opt-out provision would apply only if the I-130 petition was "initially filed" when the beneficiary was over 21. If the beneficiary had started out in the second preference 2A category and subsequently moved into the 2B category, the beneficiary could not opt out of automatic conversion to the first preference category upon the petitioner naturalizing.
Example. Same facts as above, only Virgie was under 21 at the time the I‑130 was filed. In that case, she would have started out in the 2A category and converted to the first preference category when the father naturalized. She could not opt out of this conversion and stay in the 2B category.
But the June 14, 2006, memo from Michael Aytes, USCIS associate director of domestic operations, changes that outcome. The agency will now apply CSPA section 6 to all beneficiaries who are over 21 and in the second preference 2B category, regardless of whether they started out in the 2A or 2B, if they wish to remain in that category rather than converting to the first preference.
