US VISA -OPINION | IMMIGRATION CORNER – If you love them, don’t marry them!

I’ve often joked with people who are being petitioned as “single” by their parents – and who have a boyfriend or girlfriend – that if they love them, don’t marry them.  Marriage could result in the person’s petition becoming void (if their parent was an immigrant or green card holder) or require them to wait at least a decade longer if their parent is a US citizen.

I recently had a consultation which illustrates this point.  Had she not married her boyfriend, the entire family would have been US citizens by now.  Instead, they are still waiting for their immigrant visa.

In that case, her immigrant mother filed an F-2B petition for her in 2001, but she married her boyfriend in 2002, resulting in that petition becoming automatically void and the loss of the priority date. When her mother naturalized, the mother immediately filed a new petition in 2004 in the F-3 category (married child of a US citizen).  She wanted to know if there was any way to expedite her green card or salvage her old priority date. The answer is no. She needs to wait until her 2004 F-3 priority date eventually becomes current, which may be in two or three years.

I explained to her that had she remained single, her original 2001 F2B petition would have been current around 2012. She and the children could have immigrated and when she received her green card, she could have flown back to the Philippines, married her boyfriend, petitioned him in category F-2A (spouse of an immigrant) and he would then be able to immigrate about a year later.

Therefore, by approximately 2015, the entire family would have immigrated to the US and by 2020, they would all be eligible for naturalization. Instead, they still have at least another two or more years to wait before her F3 priority date is current. In the meantime, she has a child who is aging out and will turn 21 in 2023.

I am not saying that people in love should never marry. What I am saying is that in certain cases, it is better to wait until after you obtain your green card before marrying.

Here are some practice pointers about marrying while being petitioned by a parent:

• If being petitioned by an immigrant parent, you must remain single up until the time you obtain your green card. If you marry at any point before obtaining lawful permanent resident status, your petition is void. It does not matter that you were single when the petition was filed but later married.  You must remain single, or the petition is void and the priority date is lost.

• If being petitioned by a US citizen parent, your marriage will not void the petition. But it will convert the petition from F-1 to F-3, which could add an additional 10 or more years to the waiting time. For example, right now the priority date for a single adult child of a US citizen is 2002, whereas it is 2012 for married children.

• If your parent petitioned you while they were an immigrant and then you married, they will need to file a new petition once they naturalize. Here, the mother was smart enough to file a new petition upon naturalization. However, I’ve come across other cases where the immigrant parent filed a petition, the child married and the parent naturalized, but neglected to file a new F3 petition for their married child, mistakenly believing the original F-2B petition was still intact.

• If a person was petitioned by a US citizen parent as married, or category F-3, but the marriage is terminated through death, divorce or annulment, that petition can convert from F-3 to F-1, speeding up visa availability by 10 or more years. I’ve come across many cases where a married couple has been separated for years, all love is lost and they have no intentions of ever living together again. If that’s the case and the marriage cannot be salvaged, terminate the marriage and immigrate faster! (But it cannot be a “fixed divorce,” like a fixed marriage, where the couple is truly in love but they are divorcing only for a faster priority date.)

If you were petitioned as single but later married, you may want to consult with an attorney to make sure your case is on track, needs to be refiled or if there are other, faster ways to obtain a green card.

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