When a Filipino permanent resident
becomes naturalized as a U.S.
citizen, any pending petition filed by him for his unmarried children would be
automatically converted from family based second preference to first
preference. Considering that the present priority date for first preference is
five years longer than second preference, many permanent residents had to hold
off applying for naturalization so as not to prolong the waiting period for the
pending petition/s for their children.
The law has been amended by the Child
Status Protection Act to enable permanent residents to become naturalized U.S. citizens
without affecting the preference category of pending second preference
petitions for their children. To preserve the priority date of the pending
second preference petition, the unmarried son or daughter of the permanent
resident must request that the automatic conversion to first preference
category not occur and that his case continue to be treated as a second
preference petition.
This amendment also enables certain
aliens to adjust as children of permanent residents under the second preference
category A (children of permanent residents under 21) even if they turn 21
before their priority date becomes current. For purposes of determining whether
the alien who has turned 21can still adjust status under second preference A
category, the beneficiary’s age will be locked in on the date that the priority
date for the I-130 petition becomes current, less the number of days that the
petition was pending. The alien child must apply for adjustment of status
within one year of the priority date becoming current.
For example, the I-130 petition was filed
for the 18-year-old child of a permanent resident in September 1996. The
petition was approved in September 2000. In September 2002, the priority date
for the original family-based second preference A category became current. The
child is now 24 years old. To determine whether the child can still adjust
under the 2A category, you lock in the age of the child at the time when the
priority date became current, which is age 24, then you subtract the number of
years when the petition was pending (24 - 4), and the result is 20 years old.
In this case, the alien child can apply for adjustment under 2A provided that
he applies within one year from September, 2002 when the priority date became
current. This benefit is important for Filipinos because the priority date for
second preference children over 21 is three years longer than 2A.
Lastly, the amendments also preserve the
right of the child of a U.S.
citizen to apply for adjustment of status to permanent resident based on an
I-130 petition filed when the child was still under 21, even if the interview
date and adjudication does not occur until after the child has turned 21,
provided that the child remains unmarried.
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