The Perils of Naturalizing: BIA Holds No Opt-Out for F-2As

"One of the more confounding – and now disappointing – aspects of the Child Status Protection Act (CSPA) has been whether it offers children protection from any unintended adverse affects when their parents naturalize.  After all, a special section was added by the CSPA to ensure that children from the Philippines in the F-2B category would not be penalized when their parents naturalize.  These children are allowed to opt out of the automatic conversion to the F-1 category and remain in the F-2B, given that the backlogs in the first preference are longer.  What about children who are over 21 using their biological age, but still in the F-2A category due to their CSPA age?  The first preference is also currently backlogged farther than the F-2A for all nationalities.  Shouldn’t they be able to take advantage of this benefit and opt out? The answer, according to a recent BIA decision, is “no.”  The holding sends a clear warning to those who are contemplating naturalizing and whose children might be affected.  It also is a sharp rebuke to the USCIS, which recently analyzed this issue and came to the opposite conclusion."

Charles Wheeler, CLINIC, Oct. 2011.