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Conversion Of Immigrant Petitions

What Happens If I Get Married After My Parent’s I-130 Petition Is Approved?

Question:

“My father filed immigration papers for me several years ago. I was under 21 at the time. Now I am an adult. I am planning to get married. I went to a paralegal who told me if I get married, I have to start my immigration case all over again. But a friend, who has a sister who used to work in a law office, said that I can still win a green card through my father. I’m confused what to do.”

(Submitted by Roberta E., Nuevo, CA)

Answer:

Your situation is not uncommon. Either opinion could be right. It depends on the facts of your case.

As I will explain, what the paralegal and your friend are disagreeing about is centered on the issue of immigrant preference categories.

Different things can happen between the date immigration papers are filed and the date of an immigrant’s green card interview. These include divorce, death, or like in your situation, turning 21 and marriage.

These events affect cases in various ways. They can slow down your case, speed up your case, and sometimes terminate your case.

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Retention Of Priority Dates Upon   Conversion Of Immigrant Family Petition

The paperwork your father filed is known as an I-130 petition.

Once the petition is approved, you must wait for your priority date to become “current” in order to file your application for permanent residence.

Let’s break this down a little further.

Under immigration law, your father is considered the petitioner.  You are the beneficiary.

When family members file petitions for their relatives, the filings are placed in categories depending on the relationship between the petitioner and beneficiary.

Our permanent residence system for family members is based on quotas. Due to these quotas, the processing of applications move quicker in some categories.

When a petitioner like your father files the I-130, it is given a priority date.

Simply stated, the priority date is the date that your petition was properly filed with the U.S. Citizenship and Immigration Services.

Because the permanent residence system for family members is based on quotas, your green card application cannot be filed until your priority date is deemed “current” – which means a visa is now available for you.

How soon your priority date become “current” depends on the category in which your application is placed.

In other words, your priority date will be retained and stay the same in the different categories – but it could take longer to become current.

Except for one category, where your father’s petition will be revoked as a matter of law.

The first issue we need to explore is your father’s immigration status.

Because you wrote that he filed a petition on your behalf several years ago, I will assume he was a permanent resident at that time.

Here’s why.

If he was a U.S. citizen when he filed, since you were an unmarried child under 21 years old, your petition would have been categorized as an immediate relative.  This means the petition he filed for you would not be subject to the immigrant quota system and you would not need to wait several years.

(Of course, I am not sure what you meant by the term “several years”.  If you have only been waiting one year or even two years, my analysis could be wrong.)

There are longer waiting times for processing of permanent resident applications filed by lawful permanent resident parents.

As the child under 21 years and unmarried, sponsored by a permanent resident, your petition falls under the Second Preference (2A) category.  This means your application is subject to the quota system and will take a few years to complete processing.

Conversion Of I-130 Family-Based Petition To A New Category

As you can see, the immigrant visa system can be puzzling for children of immigrants trying to become permanent residents through their parents.

In cases like yours, the confusion often increases when the relationship between the petitioner and the beneficiary changes during the permanent residence process.

Here are four possibilities that might apply to your situation.

Minor Child Of Permanent Resident Turns 21 

The first change since your father filed the I-130 petition is that you turned 21.  Since you are now an unmarried daughter over 21 of a permanent resident, your petition has been “converted”.  It now falls under the 2B category.

This is a lower preference category, which means your wait to become a green card holder will take longer than under the 2A classification.

In the above situation, your priority date remains the same.  But due to the change to a slower category, it will take longer before it becomes “current”.  Hence, you will need to wait longer before you can file your green card application.

If this is your situation, your friend’s sister is right.

Adult Child Of Permanent Resident Gets Married 

What happens if you get married?

Unfortunately, there is nowhere to go in the immigrant visa preference system.  This means you lose the ability to immigrate under your father’s petition.  As the married daughter over 21 of a permanent resident, the petition is automatically revoked.  Your priority date is lost.

Here, what the paralegal told you is correct.

Click this link for an easy-to-understand I-130 immigrant petitions graph showing the different family-based categories

Minor Child Of U.S. Citizen Turns 21 

So why did I say you might be eligible to win a green card based on the facts of your case, even if you get married?

I’m not sure your father is still a permanent resident.

Perhaps he was a permanent resident at the time he filed the I-130 petition. But maybe he has since become a naturalized citizen.

If he did naturalize, your I-130 petition, as a unmarried daughter over 21, was converted to the First Preference category.

Adult Child Of U.S. Citizen Gets Married  

And if you now get married, the petition would again be converted, this time to the Third Preference category.

Getting married, in other words, does not stop you from qualifying for permanent resident through a U.S. citizen father.

This means the sister of your friend is correct.

This is why I said either opinion could be right. It depends on your the specific facts of your case.

Permanent Resident Through Marriage

Here is another option to consider

It is also possible, if your future spouse is a U.S. citizen or permanent resident, you could file for permanent resident benefits through marriage.

Generally, marriages to U.S. citizens are the easiest path to winning a green card. Yet, there are several permanent residence pitfalls you must be careful to avoid.

Potential Unlawful Presence Issues

Throughout this discussion, I have not talked about whether you entered the country lawfully or how long you have lived in the United States in unlawful status without authorization.

Even though you did not touch on these concerns, they are too important to leave unaddressed.

 

These issues could affect – indeed, damage – your case. Hence, before proceeding, I encourage you to thoroughly review if they apply to your case with competent legal counsel.

By Carlos A. Batara, Filed Under Q&As: Family-Based Visas And Immigrant Petitions.

Ready to take a serious and honest look at the strengths and weaknesses of your immigration case? Let’s get started with a personalized strategy and planning consultation . . .

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