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COMMON IMMIGRATION MISCONCEPTIONS (PART 1)
by Michael J. Gurfinkel, Esq.
Many people have misconceptions or misunderstandings
about immigration law, relying on information from friends, relatives,
consultants, or other "advisers." These advisers often
rely, too, on rumors and hearsay, and might not even be aware
of the ever-changing immigration laws.
As a result, some people do not apply for
immigration benefits to which they may be entitled, and delay
their legalization process. Other people apply for benefits to
which they are not entitled, or wait for immigration benefits
that will never come. They waste time, money, and effort for nothing.
I hope this column will clarify some of the more
common misconceptions, so that people will no longer commit mistakes
that may jeopardize or delay their entitlement to certain immigration
benefits.
Here are some of the more common misconceptions:
1. Only U.S. Citizens can petition
family members.-- FALSE!
Green card holders can also petition certain family
members, such as their spouse, and unmarried children,
both minor (below 21) or adult (over 21).
2. It is faster for U.S. Citizen parents from
the Philippines to petition adult single children than it is for
green card holder parents ² FALSE!
It takes longer for single adult (over
21) children of American citizens to obtain green cards
than the single adult children of green card holders,
for people born in the Philippines. Therefore, if you
are a green card parent and have a single adult child under
petition, it would be best to check the current priority dates
in these categories before you become a citizen.
3. The only way to get a green card
is through a family petition.-- FALSE!
Employers can also petition people for green cards
through the process called Labor Certification. This green card
takes approximately 3 ý years to process (compared to 5 to 20
years for most family petitions). Also, the spouse and minor
children of the sponsored employee can get green cards at the
same time. So, it's a green card for the entire family!
4. The U.S. Embassy and INS evaluate
a person's age and marital status only at the time the petition
is filed, but not at the time the person is interviewed for their
visa.-- FALSE!
A person's status at the time of their visa (or
adjustment) interview is critical in connection with his eligibility
for a visa, and is definitely taken into consideration by the
INS and Embassy:
(a) If a person was single at the time
the petition was filed, but got married before the interview,
that person is considered married and will be processed
as married.
-- If they were petitioned by an immigrant
parent, the petition becomes void, because only U.S.
citizens can petition married children.
-- If a person was petitioned by their U.S. citizen
parent, the person's petition is automatically reclassified
from unmarried (F-1) to the category of married children (F-3),
where they keep the same priority date, but there is a little
longer wait for a green card. However, the newly-acquired spouse
could then be included for a visa under that same petition.
If a person was a minor child (under 21)
at the time the petition was filed, but turned 21 years old
before the INS or Consular interview, he is considered an adult,
and will be processed, and be subject to the priority dates
for adults, which would mean a much longer waiting time.
If the petitioner was alive at the time
the petition was filed, but died before the interview,
the petition may no longer be valid, because the petition dies
with the petitioner. (Some exceptions to this rule may apply,
however.)
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