How a Parent's Naturalization Affects a Child's Green Card Application: Category Changes and Aging Out
This article explains how a green card holder parent's naturalization or a child's aging out can change the immigration category and affect visa wait times. It covers F2A, F2B, and F1 category conversions, CSPA age calculation, the scope of the Tovar v. Sessions ruling, and considerations for avoiding unfavorable conversions.
U.S. immigration law allows citizens and green card holders to petition for certain relatives. During the lengthy application process, circumstances of both the petitioner and the beneficiary may change significantly, and two of these changes can greatly affect the application:
- During the wait, a petitioner who was a green card holder becomes a naturalized citizen.
- During the wait, the beneficiary turns 21 or marries and therefore no longer qualifies as a "child" under immigration law.
If both events occur during the application process—the parent naturalizes and the child ages out—the situation becomes more delicate.
Statue of Liberty (Photo: National Park Service)
Basic Rules for Petitioning for Children
If you are a legal permanent resident (LPR), you can petition for several categories of relatives:
- A foreign-born spouse and children under 21 (F2A)
- Unmarried children aged 21 or older (F2B)
If you are a U.S. citizen, your spouse, children under 21, and parents are considered "immediate relatives" under immigration law, not subject to green card quotas and without visa backlog. Additionally, you can petition for the following relatives:
- Adult unmarried children aged 21 or older (F1)
- Married children (F3)
- Brothers and sisters (F4)
Priority dates vary greatly among categories, and switching from one category to another may significantly slow down or speed up your processing.
For this month's priority dates, see: {https://gonglue.us/14941}.
The Beneficiary Turns 21
Minor children of green card holders fall under F2A, which has generally had easier visa availability (currently no backlog); once a child turns 21, they become F2B, immediately adding several years of waiting. Moreover, minor children can immigrate as derivatives with their parents; if a child turns 21 during the process and ages out, they lose eligibility to immigrate with their parents.
To address this issue, Congress passed the Child Status Protection Act (CSPA). For children of green card holders, a "CSPA adjusted age" is calculated as: (chronological age when a visa becomes available) minus (duration the petition was pending). The former refers to the Final Action Date; the latter includes processing time for I-130/I-140/PERM, calculated as (approval date of I-130/I-140/PERM) minus (filing date). For example, if your chronological age was 22 when the Final Action Date arrived, but your I-130 was pending for 2 years before approval, your CSPA age is (22-2) = 20 years old.
See: {https://gonglue.us/47312}.
Parent Naturalizes While the Child Is Under 21
After a green card holder parent files an I-130 petition for a child, they may apply for naturalization if they meet residency requirements, see: {https://gonglue.us/15153}. Naturalization can be beneficial, meaning they can petition for more relatives, including parents (no backlog) and siblings; a spouse becomes an immediate relative, with no visa backlog.
However, for children applying for green cards, parental naturalization is not always beneficial; it depends on the child's age at the time of naturalization, because if the case converts to the "citizen parent petitioning for child" category, the child's age is frozen as of the naturalization date. If the child is under 21 when the parent naturalizes, they automatically convert from F2A to an immediate relative of a citizen, with no backlog. But at the time of writing, F2A already has no backlog, so whether it converts to "immediate relative" may have little impact.
If the Child Was Already 21 When the I-130 Was Filed
If a green card holder parent files an I-130 for an adult unmarried child, it falls under F2B; after the parent naturalizes, the child automatically becomes an "adult unmarried child of a citizen," i.e., "upgrades" from F2B to F1. This is not beneficial because F1 demand is high, and in recent years F1 backlogs have been longer than F2B; at the time of writing, for applicants born in mainland China, the F2B Final Action Date is 2015-08-15, while F1 is 2014-10-22. That means upgrading from "adult unmarried child of a green card holder" to "adult unmarried child of a citizen" will require waiting nearly an additional year to get a green card.
In this situation, the beneficiary (the child) may write to the USCIS office that approved the I-130 to request that the upgrade be canceled.
If the Child Turns 21 Between the I-130 Filing and the Parent's Naturalization
If the child is under 21 when the I-130 is filed, they fall under F2A. If the child turns 21 while waiting but their CSPA adjusted age under the Child Status Protection Act is still under 21, they can continue under F2A; however, after the parent naturalizes, the child, having reached adulthood, automatically converts to F1 status.
F2A currently has no backlog, while F1 has a backlog of nearly 7 years. USCIS and the Board of Immigration Appeals have held that this conversion is automatic and the beneficiary cannot opt out. However, in the 2018 case Tovar v. Sessions, the Ninth Circuit Court of Appeals ruled that the U.S. government's (USCIS's) interpretation of the law was incorrect, and that the child's age at the time of the parent's naturalization should also be adjusted under CSPA, rather than using the chronological age at that time. If the petitioner resides in the Ninth Circuit's jurisdiction, including California, Washington, Arizona, Idaho, Hawaii, Nevada, Montana, Oregon, and Alaska, F2A will automatically convert to immediate relative as long as the CSPA age is under 21, rather than to the long-backlogged F1.
However, if the petitioner does not reside in the Ninth Circuit's jurisdiction and the child's chronological age reaches 21 between the I-130 filing and the parent's naturalization, the F2A case (which originally had no backlog or a short one) will automatically convert to the long-backlogged F1, and this cannot be undone. To avoid this, aside from suing USCIS and hoping to win, the best approach is for the parent not to naturalize, but to wait until the child enters the U.S. and obtains a green card (not just receives an immigrant visa) before naturalizing.
References:
- USCIS: Child Status Protection Act (CSPA)
- Caleb Benadum: How Naturalization Affects Your Child’s Application for a U.S. Green Card
Frequently Asked Questions
Not necessarily. Minor children of green card holders currently have no backlog anyway, so converting to minor children of citizens (immediate relatives) may have little impact. Adult unmarried children of green card holders under F2B currently have about a 6-year backlog; if "upgraded" to F1 (adult unmarried children of citizens), the current backlog is actually longer, about 7 years. If the child reaches adulthood between the I-130 filing and the parent's naturalization, they may convert from no-backlog F2A to long-backlogged F1, which is even more regrettable.
The beneficiary (the child) may write to the USCIS office that approved the I-130 to request that the upgrade be canceled.
This refers to the Child Status Protection Act (CSPA), which allows subtracting the petition processing time from the chronological age when determining immigration eligibility. For example, if your chronological age was 22 when the Final Action Date arrived, but your I-130 was pending for 2 years before approval, your CSPA age is (22-2) = 20 years old. See: "How to Calculate CSPA Adjusted and Frozen Ages."
