If my mother leaves the US, will this slow down my f2b visa petition? 2 Answers as of February 11, 2011

My mother is a lawful permanent resident since 2006 until now. She does not want to apply for a US citizenship because I am under petition for f2b (unmarried sons over age 21) and if she applies for a US CITIZENSHIP my FB2 change to F1 and it is very slower. My F2B PD is: June, 1, 1999, as of February, 2011, and F1 PD is: August of 94 as of February, 2011. My mother has been working since 2006 and how about IF she wants to end or retire from her work in US in 2013 or 2014(7-8 years of work in the US) and go back to the Philippines after. Will I still get or wait my petition until it is available after 10 years? My mother petitioned me last 2006. Thanks in advance.

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Law Office of Christine Troy
Law Office of Christine Troy | Christine Troy
Under current law, your mother is allowed to naturalize without affecting your visa category. You basically "opt out" of the upgrade. This law was put into affect to address the issue you outline, which is that persons who otherwise would become US citizens, would not. Additionally, if your mother leaves the US and starts to actually live abroad, DHS will revoke her green card status. In that instance, your petition is no longer valid. I highly recommend that you both sit down with a competent immigration attorney to discuss your case in full and to make sure that the general information I list here applies to your case. To say that another way, your mother should not leave the US without 1)100% determining that your case will not be affected based on the facts of your case and 2) that she preserves her residency on her trips abroad. Remember there is a BIG difference between her visiting or living abroad. In the latter, she is not legally considered a resident!
Answer Applies to: California
Replied: 2/11/2011
Nicastro Piscopo, APLC
Nicastro Piscopo, APLC | Louis M. Piscopo
If you mother returns to the Philippines to live it could prevent you from becoming a Green Card holder when your priority date is current. First, she could be found to have abandoned her Green Card, in which case she would no longer be a Legal Permanent Resident and your petition will be canceled. Second, even if that does not happened, she must file an Affidavit of Support when your your priority date is current, and one of the requires is that she must be domiciled in the U.S.. If she living in the Philippines she may not be domiciled in the US and therefore your immigrant visa or adjustment of status could be denied.
Answer Applies to: California
Replied: 2/11/2011
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