No Time to Wait: Spouse and Unmarried Children of LPR Visa Category Not Current as of October 1.

By Attorneys Joseph I. Elias and Nancy E. Miller

In August 2013, the F-2A immigrant visa category became current for the first time in decades. This is the visa category reserved for spouses and unmarried children under the age of 21 of lawful permanent residents. The State Department had originally predicted that the F-2A visa category would remain current into the foreseeable future. But, it revised that prediction in September 2013 and said that it expected this visa category to begin to retrogress as early as October 2013.  Sure enough, the October Visa Bulletin shows F2A will be backlogged to September 8, 2013 for all countries except Mexico which will be backlogged to September 1, 2013.  While this may not sound too bad, keep in mind that, according to the State Department, this is the beginning.  The retrogression (backlog) will probably get much worse in the near future.

Retrogression will have significant consequences on F-2A beneficiaries. Right now (until October 1), F-2As in the U.S., who are in status or are 245(i) grandfathered, can apply for adjustment of status with CIS, regardless of when their underlying petitions were filed. This includes F-2A beneficiaries whose immigrant visa petitions are being filed concurrently with the adjustment of status application. As long as their applications for adjustment are pending, they will be eligible for work authorization.  This will no longer be possible starting in October. Once the visa numbers retrogress, applicants will not be able to file for adjustment of status until their priority date becomes current.  Without a pending application for adjustment, the applicant will not be eligible to obtain work authorization. 

Unfortunately, F-2A applicants who are consular processing will not enjoy the same benefit. Not only must they interview for an immigrant visa at a US consulate before October, but, they must also be issued the visa before the visa numbers retrogress. Once the numbers retrogress, they will have to wait until their priority dates are reached. Only then can the U.S. consulate issue them the F-2A visa.

It is therefore of the utmost importance for lawful permanent residents who have not yet petitioned their spouses or single children under 21 to file an immigrant visa petition as soon as possible. This is especially important for lawful permanent residents whose children will be turning 21 shortly. Once the child turns 21, that child ages out of F-2A and converts to the F-2B category. F-2B has a significantly longer wait time of typically 10 years or more. But, a special provision under the Child Status Protection Act can protect some children from aging out. It allows a child’s age to be frozen under 21 for immigration purposes. This provision requires the child to seek to acquire an immigrant visa within one year of the child’s priority date becoming current.

The immigration service has defined sought to acquire as the date it receives the adjustment of status application. This applies only to F-2A children in the U.S. F-2A children processing overseas must establish sought to acquire by other means. The State Department has identified the filing of an I-824 while the F-2A priority date is current, and within one year of the visa number becoming available, as one way for freezing the child’s age under 21. Since visa numbers are current right now, filing an I-824 in September will effectively freeze an overseas F-2Achild’s age as under 21. This means thatupon the child’s 21st birthday, the child will remain in the F-2A category with a shorter wait time. The child will not be converted to the F-2B category with the longer wait time. But, this can only happen if the I-824 is filed while visa numbers are current. If a parent filesthe immigrant visa petition and I-824 in October, after numbers have retrogressed, and the child then turns 21, that child can be converted to the F-2B category.

It is therefore critical for lawful permanent resident parents whose children risk aging out of the F-2A category to properly file and prepare the necessary applications in the month of September. No time can be wasted given the few short weeks left in the month of September. Making these filings a priority will make a significant difference in the amount of time parents will be separated from their children.