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Opting out of I-130 petition upgrade for sons and daughters of LPRS

By January 18, 2022Immigration
A family of two adults and two children spending quality time together

I had petitioned my unmarried daughter as a legal permanent resident and I became a U.S. Citizen thinking that the green card waiting period would be shorter, but recently discovered that the waiting period would be increased. Is there anything I can do now to prevent the increase in waiting period?

The issue you are facing is based on the Cap imposed by law for certain categories of petitioning family members not considered immediate family members. Depending on the non-immediate family member and the region of the world the beneficiary was born will determine the waiting period based on the filing date, known as the priority date of the family-based petition. You can view a more detailed explanation of family preference categories and priority dates here.

A common misconception is that when a petitioning legal permanent resident parent petitions for a son or daughter, the upgrade in petition to that of U.S. citizen parent will decrease the waiting period before being able to apply for the second and final stage of the green card process whether it’s applying for the green card within the United States through the adjustment of status process or abroad through consular processing. You can review a detailed explanation about the green card process through adjustment of status here. You can review a detailed explanation about the green card process by applying through the consulate here.

The problem is that based on the limited green card availability and the increased demand for green cards for the category of petitioning U.S. citizen parents compared to the lesser demand for green cards for the category of petitioning legal permanent resident parents, the supposed upgrade in family preference category is more of an actual downgrade because of the current increased waiting period. Keep in mind that this could change in the future if the demand increases for the legal permanent resident category.

Fortunately, there is a fairly simple solution in this scenario. If the parent becomes a U.S. Citizen, the son or daughter can decide to opt out of the supposed upgrade and elect to stay in the category of son or daughter of legal permanent resident, by notifying the immigration service, “USCIS” in adjustment of status cases or the National Visa Cener in consular processing cases. Keep in mind however that this solution is not always available in cases involving a petition filed for a child under 21 years of age. We will discuss this issue in a future blog.

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