HELP!!! My mother became a U.S. Citizen...does this affect my preference category???

V

vball9sideout

Registered Users (C)
I am a beneficiary of an I-130 Family-Based petition that was approved and given a Priority Date of May 2002. At the time this petition was submitted, my mother--the sponsor--was a Permanent Resident. The Notice of Approval indicates that my category is 2B (Unmarried Son/Daughter 21-older of Permanent Resident).

According to the latest Visa Bulletin, my Priority Date is current as of September 2010 (Priority Date listed for 2B/Philippines = August 2002).

My mother became a U.S. Citizen in May 2010. According to the lawyer we've been using throughout this process, my priority date is now not current because my category preference has changed due to my mom becoming a U.S. Citizen. He says that my category is now 1st preference (Unmarried son/daughter of U.S. Citizen). The Visa Bulletin indicates a Priority Date in that category (1st/Philippines) is still in 1997.

Does it make sense that we are penalized and demoted in this process as a result of my mom becoming a U.S. Citizen??? Isn't that the point of her becoming a permanent resident to begin with?

We need help and advice!!! We've been waiting for a long time already.

Shall I go ahead and apply for I-485 Change of Status based on the original Notice of Approval which indicates my category as 2B and a Priority Date of May 2002?
 
vball9sideout said:
Does it make sense that we are penalized and demoted in this process as a result of my mom becoming a U.S. Citizen??? Isn't that the point of her becoming a permanent resident to begin with?
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The law does not penalize you - it's only that many more citizens have petitioned their children.

Shall I go ahead and apply for I-485 Change of Status based on the original Notice of Approval which indicates my category as 2B and a Priority Date of May 2002?
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That's a good way to get it denied when the USCIS examiner discovers your mother is no longer a permanent resident. If you want to waste $1000, send it to me.
 
Is there a way to appeal??? We are talking about a person here who has already waited 8 years for this process to unfold...and now as a result of this technicality, we're looking at another 5-6 years of waiting.

Won't the law give deference to the original petition and Notice of Approval?

Had the lawyer informed us accordingly that my mother should wait longer to apply for her citizenship, then I'd be eligible to apply next week for I-485, but she was given bad advice.
 
vball9sideout said:
Is there a way to appeal??? We are talking about a person here who has already waited 8 years for this process to unfold...and now as a result of this technicality, we're looking at another 5-6 years of waiting.
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There is no appeal since no error in law or fact has occurred.

Won't the law give deference to the original petition and Notice of Approval?
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Why? The petition was for the child of a Permanent Resident, which you no longer are.

Had the lawyer informed us accordingly that my mother should wait longer to apply for her citizenship, then I'd be eligible to apply next week for I-485, but she was given bad advice.
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Here, you have a point. I'd be screaming at the lawyer right now.
 
The OP, it appears as if the lawyer your family is using is a source of all your problem. I am not sure how much your family is paying him or her, the stupid lawyer should have told your mother to wait until next year, so that you can be able to file for I-485 now. However, your lawyer is acting confused about the process, in the meantime he's collecting a good consultation fee or retainer. Since you are from the PH, there are many people from that country who are already in the US, so the wait time is a little longer.

Who advised your mother to file for N400?
 
PI is a special case where citizen sponsorship takes longer than LPR sponsorship in certain categories. You do not have to upgrade. There is a specific process to follow (I saw a good writeup lately on another forum which I do not remember at this time) of what needed to be done to keep the LPR related category for processing. I suggest that if you are unable to find the procedure that must be followed (try Gurfinkel for more info on the problem) that you get an attorney to assist you. I believe it is as simple as a letter to a specific office but sine I am not interested in PI issues, I did not make note of it.
 
It seems there is the option to remain in Family 2B when the petitioner naturalizes.

http://www.nilc.org/immlawpolicy/obtainlpr/oblpr110.htm

CHILD IS OVER 21 WHEN PETITION IS FILED AND 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 son or daughter over 21 will automatically convert from second preference 2B to first preference when the LPR parent naturalizes.

The first preference category is now backlogged much farther than the second preference 2B category for beneficiaries from the Philippines, and on occasion it has been backlogged farther for beneficiaries from Mexico. For example, the July 2006 Visa Bulletin indicates that second preference 2B beneficiaries from the Philippines are current if the I-130 petition was filed before July 8, 1996. If the same beneficiary were in the first preference category, the I-130 petition would have to have been filed before Sept. 22, 1991, almost five years earlier.

Therefore, when their parents naturalize, and these sons and daughters over 21 convert from 2B to first preference, they actually extend the time they must wait for their visa to become current. Section 6 of the CSPA eliminates this disparity and inequity by allowing these beneficiaries to elect whether they want to convert automatically to the first preference or opt out and stay in the 2B category.

The date of filing of the second preference petition is not material for retention to be approved. In other words, it applies to petitions filed before, on, or after Aug. 6, 2002. It also applies to petitions approved before, on, or after Aug. 6, 2002. It applies to beneficiaries who turned 21 before, on, or after Aug. 6, 2002. This section of the CSPA is therefore applied retroactively. In addition, this section of the CSPA does not require any one-year filing requirement after the visa becomes available.

USCIS issued a memo on Mar. 23, 2004, explaining the procedure for opting out. Given that only beneficiaries from the Philippines are currently affected by this provision, they will need to send a letter formally requesting preservation of their 2B classification to the officer-in-charge in Manila, according to the memo. The officer-in-charge will, in turn, provide written notification of a decision granting or denying the request and send it to the beneficiary and to the DOS Visa Issuance unit. Beneficiaries who are approved will be treated as if their petitioning parents never naturalized. The request should be sent to USCIS in Manila when the beneficiary is consular processing, as well as when he or she is already in the U.S. and will be adjusting status. To expedite the request, include the following basic information about the case: case number, date of beneficiary's birth, name of petitioner, priority date, preference category, and a copy of the I-130 approval notice.

Example. Virgie is the 35-year-old daughter of a Filipino man who just naturalized. He filed an I-130 petition on Virgie's behalf on Mar. 1, 1996. At that time she was 24 years old. The second preference 2B category is now current for her priority date. But when her father naturalized, she moved into the first preference category, which is backlogged five years farther than the second preference 2B category. Fortunately, Virgie can elect to remain in the 2B category and thus be eligible to adjust or consular process. She must file a formal election and written request to the USCIS office in Manila. It does not matter that the father's naturalization occurred before or after Aug. 6, 2002.
 
I found the USCIS memo that was referenced in the article I quoted above.
 
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This will help you...

Q. What happens if a petition is filed by a Legal Permanent Resident (F2A or F2B) and the petitioner becomes a U.S. citizen before the applicant is called for an interview?

When the petitioner naturalizes, the F2A petition (spouse or minor child of a permanent resident) is automatically converted to an IR1 (spouse of an American) or IR2 (child of an American) petition. These visa categories are not subject to the visa quota system and will therefore always have visas available for the beneficiaries’ use if they qualify for visa issuance.

However, because there are no derivative beneficiaries allowed with IR petitions, children who are derivative applicants on a parent’s F2A application must each have a separate IR2 petition filed for them if the petitioner becomes a U.S. citizen. F2A petitioners who naturalize should make sure to file new IR2 petitions for their children (if they did not originally file separate petitions for them).

For F2B applicants (unmarried son/daughter of a permanent resident), their F2B petitions are automatically converted to the F1 category retaining the original priority date when their petitioners naturalize. Because of unique circumstances, the waiting period for the F1 category is longer than the F2B category in the Philippines. However, under Section 6 of the Child Status Protection Act (CSPA), the applicant (not the petitioner) can request exemption from the automatic conversion of the visa category from F2B to F1 by submitting to the Department of Homeland Security/U.S. Citizenship and Immigration Services (DHS/USCIS) a written statement that he/she elects to have such conversion revoked. The applicant may send the written request for retention of his/her F2B category to the DHS/USCIS office in Manila by fax at 301-2208 (Attn: Field Office Director) or by mail: DHS/USCIS, U.S. Embassy, 1201 Roxas Blvd., Ermita, Metro Manila 0930.

You can check this info at the us embassy in manila website
 
What you need to do now is to send mail and fax requesting your retention in F2B with the below format.


Attn: Field Office Director
DHS/USCIS, U.S. Embassy,
1201 Roxas Blvd., Ermita,
Metro Manila 0930


Case Number: MNL
Beneficiary's date of Birth:
Petitioner's Full Name:
Priority Date:
Preference Category:F2B
Priority date:
Email Address:
Mailing address:

Subject: Child Status Protection Act (CSPA)

Message: May I request exemption from the automatic conversion of my visa category from F2B to F1 and I elect to stay in F2B category.




Note: do not send documents without request it might delay the processing.


After reviewing your request they will send a mail requesting for additional info such as the following:

Your request for opt-out under Section 6 of the Child Status Protection Act has been reviewed and found deficient. Submit ALL of the following additional evidence and/or explanations noted by a check mark. ALL requested information must be received within 60 days from the date of this notice.
[*] A copy of the National Visa Center notifying the beneficiary of the CSPA opt-out provision. OR answer the following questions below if not in possession of the letter.
Case Number: MNL_________________________________
Beneficiary's date of Birth:___________________________
Petitioner's Full Name:______________________________
Priority Date:___________________________________ ___
Preference Category:_______________________________ [*] A copy of the Form I-130 approval (Form I-797) from a Service Center or District Office.[*] A copy of the petitioner's Naturalization Certificate.[*] Original "Certificate of No Marriage" from the National statistics Office of the Philippines issued within the last six (6) months.
 
gabby25 said:
What you need to do now is to send mail and fax requesting your retention in F2B with the below format.


Attn: Field Office Director
DHS/USCIS, U.S. Embassy,
1201 Roxas Blvd., Ermita,
Metro Manila 0930
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For someone staying in the US to pursue adjustment of status, why would they send anything to the embassy in Manila?
 
Jackolantern said:
For someone staying in the US to pursue adjustment of status, why would they send anything to the embassy in Manila?
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im sorry i missed that part... anyhow he can still write an opt out letter and address it to DHS/USCIS in the states.
The address where to send the letter may change but the law doesn't. As per Section 6 of the United States’ Child Status Protection Act (CSPA) he can elect to retain F2B category or if the conversion has already occurred, to have it revoked.
 
Jackolantern said:
For someone staying in the US to pursue adjustment of status, why would they send anything to the embassy in Manila?
Click to expand...

im sorry i missed that part... anyhow he can still write an opt out letter and address it to DHS/USCIS in the states.
The address where to send the letter may change but the law doesn't. As per Section 6 of the United States’ Child Status Protection Act (CSPA) he can elect to retain F2B category or if the conversion has already occurred, to have it revoked.
 
Thanks for digging this up folks, CSPA makes my head hurt. I'm surprised no attorney has really figured it out and based a practice solely on it. There's some money and a reputation to be made there.
 
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