The mother of the beneficiary son filed a visa petition on his behalf when he was under the age of 21.  However, while the case was waiting for a visa number, the son turned 21 and, subsequently, the mother became a naturalized citizen.

The regulation automatically converts a F2A (minor unmarried child of resident parent) and F2B (adult unmarried child of resident parent) petition to be an immediate relative and F1 petition respectively upon the naturalization of the petitioner. 8 C.F.R. § 204.2(i)(3)

Section 6 of The Child Status Protection Act (CSPA), also known as section 204(k)(2) of the INA, allows an alien to affirmatively opt out of automatic conversion from the F2B category to the F1 category by filing a written statement with the Attorney General.  However, BIA held that there is no provision of law that allows an applicant to “opt out” of automatic conversion from F2A to F1 when the petitioner-parent becomes a citizen. Hence, the son in this case is not able to adjust his status by using the current cut-off date under the Mexico F2A preference category. 

This is a very important decision on a controversial issue.  BIA did not address the Equal Protection argument raised by the son as it lacks authority to rule on Constitutional issues. However, the issue is hardly settled and will likely be revisited by a federal court soon.

An intending immigrant must prove to the U.S. government that he or she will not become a “public charge” after immigration.  In other words, proof that there is sufficient financial support is one of the many requirements for a person to obtain a U.S. green card.  In all family petitions, the petitioner must promise under oath that the beneficiary immigrant will not become a financial burden of the U.S. by completing a Form I-864, Affidavit of Support.  The only exception is if the beneficiary has already completed 40 quarters of work in the U.S.  The petitioner (also the financial sponsor) must demonstrate in I-864 an income of at least 125 percent of the current poverty level for the his or her household size, plus the beneficiary immigrant(s). 
 

There is a rule from the Department of Homeland Security that requires the sponsoring employers to file a petition for all the Aliens for whom R-1 non-immigrant status is sought. To comply with the same now the consular officers are required to ensure that, the said applicants have obtained an I-129 petition form from the Department of Home land security, prior to the issuance of the visa. The said rule has been in force from the 6^th of October 2009.

In case there is a further requirement of a clarification about this rule you might feel free to get in touch with the Legislation & Regulations division of the Visa Service’s. The contact person would be Lauren Prosnik. Phone # (202) 663-2951.

Now the question is what is this rule been promulgated for? The answer to that is, on the 26^th of Nov 08, the department of homeland security announced the requirement for the sponsoring employers to file a petition for all the Aliens for whom R-1 non-immigrant status is sought. Also as per the same law the period of the validity of the visa is not supposed to exceed the period as mentioned in the petition. As a result of that, an R-1 non-immigrant visa would now require the applicant to be established as a beneficiary of an approved petition. The implementation of this petition requirement by the United States Citizenship and Immigration Services has been, for the purpose of authenticating and determining the petitions from the religious organizations for the religious workers. This would also help to ensure that such religious workers are admitted into the United States on the request of a religious organization and that is exactly where the workers work.

Miscellaneous regulatory findings:

As per the Administrative procedure act there is a regulation that involves the foreign affairs function of the US therefore according to the 5 USC 553(a)(1) is not subjected to the procedures of rule making as set by 5 USC 553.

As per the Executive orders 12866, the new rule has been reviewed by the department of State to ensure its consistency with the regulatory philosophy and the principals set by the Executive orders 12866. They have also determined that the cost of maintaining this rule is justified according to the benefits that are to be derived out of it.

As per the paper work reduction act does not impose the requirements of information collection, as per the provisions of the paper work reduction act 44 USC chapter 35.