How return to F-22?

[lera16 0]

I applied for my daughter, she was 20 years old. The USCIS was approved, sent to the NVC in 2020, I did DS-260 and paid. it was submit. The pandemic and all embassies are closed, now my daughter is 23 years old, on the website of the NVC it shows the f-22, I received US citizenship, and wrote about it to the NVC. I made a mistake? can i ask the nvs not to change her visa category. until they answered me nothing, and did not change. CPSA would be work for this case?

[HRQX 4,145]

30 minutes ago, lera16 said:

I received US citizenship

Then the case is now either IR-2 or F1. In which state do you reside? In which state did you naturalize? https://fam.state.gov/fam/09FAM/09FAM050201.html

[lera16 0]

Florida. Between IR and F-1 has many years different… if NVC move to f-1, can I ask NVC return case to f-22?

[HRQX 4,145]

34 minutes ago, lera16 said:

if NVC move to f-1, can I ask NVC return case to f-22?

When exactly did she turn 21? When exactly did you take the naturalization oath? If she was still under 21 when you naturalized then it's an IR-2 case. Otherwise per the BIA's decision in Matter of Zamora-Molina, your daughter's case is now F1 and cannot be changed: https://www.nolo.com/legal-encyclopedia/how-naturalization-affects-your-child-s-application-for-a-u-s-green-card.html

If you are a petitioner living in another jurisdiction, however, the only way to avoid your F2A child being switched to category F1 when you naturalize is to hold off on seeking citizenship. Wait until after your child has come to the United States as an F2A green card holder.

Edited October 23, 2021 by HRQX

[lera16 0]

I got citizenship already and sent email to nvc about it…  can I ask them for IR?… can I have any right for this?

[lera16 0]

She is 23 now. I did naturalization last week.

Edited October 23, 2021 by lera16

[Chancy 6,241]

2 hours ago, lera16 said:

She is 23 now. I did naturalization last week.

 

It was a mistake for you to naturalize before your daughter over 21 years old became an LPR herself.  Your daughter's case is now F1.  It cannot be reverted back to F2A.

 

[Chancy 6,241]

*** Moved from NVC forum to Bringing Family of LPR forum -- although OP is now a USC, this thread is relevant to LPR readers who may be wondering about the timing to seek US citizenship in relation to their children's F2A cases ***

 

[SusieQQQ 11,586]

59 minutes ago, Chancy said:

*** Moved from NVC forum to Bringing Family of LPR forum -- although OP is now a USC, this thread is relevant to LPR readers who may be wondering about the timing to seek US citizenship in relation to their children's F2A cases ***

 

The answer to this question is - unless your child is still under 21, don’t do it. 
As an aside, naturalizing can also create problems for a F2A spouse with derivative children case even if the children are under 21, although that can fixed with a bit of effort and patience if there’s time.

[HRQX 4,145]

4 hours ago, SusieQQQ said:

The answer to this question is - unless your child is still under 21, don’t do it.

*Another exception is those petitioners that "resided in a Second or Ninth Circuit state or territory at the time of naturalization" https://fam.state.gov/fam/09FAM/09FAM050201.html As those cases convert to IR-2 (*if the child is the principal beneficiary on the I-130) which is more favorable than F1.

 

Unfortunately, OP lived in Florida which isn't in the above 2 Circuits.

Edited October 23, 2021 by HRQX

[lera16 0]

This time is different with COVID situation. My daughter could  be get green card last year..

[Boiler 45,662]

23 minutes ago, lera16 said:

This time is different with COVID situation. My daughter could  be get green card last year..

Covid makes no difference 

[HRQX 4,145]

On 10/23/2021 at 2:26 AM, lera16 said:

can I ask NVC

If you happen to have money for court fees you could sue the Department of State at the federal district court where you reside; for example see Pages 13 and 14: https://cases.justia.com/federal/appellate-courts/ca2/19-3138/19-3138-2021-03-09.pdf?ts=1615303808 In that case while they won the case at the district court level, the Government appealed to the corresponding Circuit Court; which meant more lawyer fees, etc. to respond to that action from the Government. When taking the Government to court on the matter focus on the intent of Congress and on the absurdity of the Government's position: https://cdn.ca9.uscourts.gov/datastore/opinions/2018/02/14/14-73376.pdf

Quote

Reading the statue as a whole, the panel concluded that Congress intended “age of the alien on the date of the parent’s naturalization,” 8 U.S.C. § 1151(f)(2), to refer to statutory age—that is, age calculated according to 8 U.S.C. § 1153(h)(1).

Quote

Our conclusion that this is the correct interpretation of “age” in 8 U.S.C. § 1151(f)(2) is buttressed by other statutory and regulatory provisions. First, the history of the regulations and statutes governing automatic conversion of visa petitions upon a parent’s naturalization demonstrates that at the time the CSPA was passed, both the Department of Justice and Congress understood that petitions for minor children of LPRs would convert to petitions for minor children of citizens while petitions for adult children of LPRs would convert to petitions for adult children of citizens. Second, the CSPA included an opt-out provision for F2B to F1 conversions but no opt-out provision for conversions away from F2A—a decision that makes sense only if F2A petitions always convert to immediate relative petitions upon the parent’s naturalization.

Quote

On our interpretation, however, Congress did not overlook anything because it is always better to be the minor child of a citizen (for whom there are no limits on the number of visas available) than to be the minor child of an LPR. If a minor child stays a minor child despite the parent’s naturalization, then an opt-out provision parallel to 8 U.S.C. § 1154(k)(2) for F2A beneficiaries would have no purpose. Given a choice, we will presume that Congress acts competently and understands the implications of the legislation it passes. Its decision not to adopt an opt-out provision therefore supports our interpretation of the statute, on which F2A petitions always convert to immediate relative petitions.

The government takes the position that Rodriguez Tovar could exercise the opt-out provision to transfer to the F2B category rather than the F1 category—he just may not remain in the F2A category. Matter of Zamora-Molina, 25 I. & N. Dec. at 613–14. This interpretation of the opt-out provision does not reduce the absurdity of the government’s position in this case, because it would likely take even longer for Rodriguez Tovar to be eligible for an F2B visa than for an F1 visa. In addition, the government’s interpretation is difficult to square with the text of the statute, which says that if a beneficiary opts out of automatic conversion, “any determination with respect to the son or daughter’s eligibility for admission as a family sponsored immigrant shall be made as if such naturalization had not taken place.” 8 U.S.C. § 1154(k)(2). Had Rodriguez Tovar’s father not naturalized, Rodriguez Tovar would be eligible for a visa in the F2A category, not the F2B category. An F2B visa is therefore not the but-for result that the statute contemplates. This problem with the government’s interpretation further strengthens our conviction that Congress believed that F2A beneficiaries would never need to opt out, because they would always convert to the most advantageous category—immediate relatives of U.S. citizens.

Edited October 25, 2021 by HRQX

[lera16 0]

The last sentence is very encouraging. I am still waiting for a response from the nvs. The site says that they respond in 2 months. It will be closer to Christmas, I will definitely let you know.

[lera16 0]

The MARGARITO RODRIGUEZ TOVAR case was lost, am I right?