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YOUR IMMIGRATION STATUS IS IMPORTANT
BOTH AT TIME OF FILING AND VISA PROCESSING
by Michael J. Gurfinkel, Esq.
Dear Atty. Gurfinkel:
My mother was petitioned by her brother under
the F-4 preference category (brother/sister of U.S. citizen).
When the petition was filed by our uncle in 1979, all of us children
were minors (below 21), but now we are all over 21. Since we were
under 21 when the petition was filed, shouldn't we still be allowed
to be included under the petition?
Respectfully,
RQ
Dear RQ:
Unfortunately, because you all turned 21 before completion of
visa processing, you are no longer eligible for a visa under your
uncle's petition. This is because a beneficiary's immigration
situation (such as age and marital status) is important not only
at the time the petition is filed, but also at the time
the beneficiary is being processed for his or her visa or greencard.
In other words, it is not only the situation that existed at the
time the petition is filed that is taken into consideration, but
also the personal circumstances of the beneficiaries at the time
of Consular processing.
Even though a child was below 21 at the time
a petition was filed, if the child turned 21 or "aged
out", the child would no longer be included under the F-4
petition as a "derivative" beneficiary. You cannot argue
that at the time the petition was filed, you were under
21, and therefore should somehow continue to be considered "minors."
There is a pending bill in Congress, called the Child Status Protection
Act, which seeks to amend the Immigration and Nationality Act,
to provide for the continued classification of certain aliens
as children for immigration purposes, in cases where the aliens
"age-out" while awaiting immigration processing.
If the proposal is approved, once a petition is
filed for a child, who was under 21 at the time of filing, the
child will continue to be qualified for an immigrant visa even
after the child turns 21 while awaiting visa processing. I must
caution you, however, that these are mere proposals and
are still subject to approval by both the Congress and the Senate,
and signed into law by the President of the United States. They
are not yet law.
The marital status of a person under petition
is also very important, especially when the petitioner is a green
card holder parent, and you were petitioned in the F-2B
category (adult, unmarried child over 21 years of age). If, for
example, you were petitioned as an unmarried person by your green
card holder parent, and you get married while the petition is
pending, you will no longer qualify for a visa, since a green
card holder parent can only petition unmarried children.
Marriage will automatically void your petition.
If you were petitioned by a U.S. citizen parent
under the First Preference category (unmarried children over 21
of U.S. citizens), and you get married, your category will automatically
be converted to the Third Preference category (married, adult
children of U.S. citizens, where the waiting time is considerably
longer. However, you keep the same priority date, and do not need
to file a new petition.
In the meantime, unless and until this "age-out
bill" has been made into law, you will have to remember that
your status as minor or single must be the same during the time
of filing and the time of the actual interview or visa processing
to be entitled to the benefit you seek.
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