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U.S. CITIZENS MUST FILE SEPARATE PETITIONS FOR EACH "IMMEDIATE
RELATIVE"
by Michael J. Gurfinkel, Esq.
Dear Atty. Gurfinkel:
While I was still an immigrant, I filed a petition for my spouse
and minor children in the F-2A category (spouse and/or minor children
of green card holder). My understanding is that all of my family
members were covered by that single petition.
I later took the oath of citizenship, and am now being told that
my original petition for my spouse and minor children which I
filed while I was only a green card holder, now covers only my
spouse. So, I need to file new, separate petitions for each of
my kids. Since all my family members were previously covered under
my F-2A petition, why do I need to now file separate petitions
for my kids?
Very truly yours,
L.D.
Dear L.D.:
By law, when a U.S. citizen petitions his or her "immediate relatives"
(spouse, parents, single children under 21 years of age), the
U.S. citizen must file separate petitions for each of his or her
immediate relatives. For example, if a citizen is petitioning
his parents, he must file one petition for his father, and another,
separate petition for his mother. If a U.S. citizen is petitioning
his spouse and/or minor children, he must file separate petitions
for his spouse and for each of his minor children. A single petition
by a U.S. citizen can only cover one immediate relative.
When you were still a green card holder, the law allows your single
F-2A petition to cover several family members, such as your spouse
(who is the principal beneficiary) and all your minor children
(who were derivative beneficiaries). However, when you became
a U.S. citizen, your F-2A petition automatically converted from
F-2A (spouse/minor child of greencard holder) to immediate relative
(spouse/parent/child of U.S. citizen). That conversion changed
the classification of your spouse and children to the status of
"immediate relatives". According to the Foreign Affairs Manual,
the Immigration and Nationality Act "does not generally accord
derivative status for family members of immediate relatives as
it does for preference applicants . A U.S. citizen must file separate
immediate relative petitions for the spouse, each child, and each
parent."
In your case, when you became a U.S. citizen, only your spouse
(as the principal beneficiary) remained under your original petition,
since only one immediate relative can be covered by a petition
by a U.S. citizen. Your children, as F-2A derivative beneficiaries,
"dropped off" that petition. Therefore, you must now file new
petitions, one for each of your children, so that they, too, will
again be "under petition".
I know of one case where an immigrant had petitioned his wife
and three kids, under one petition. The priority date in the F-2A
category was already current, and the family was already in the
middle of immigrant visa processing at the U.S. Embassy, when
the petitioner took the oath of citizenship. When the family went
to the interview, only the wife was entitled to the visa. Because
the petitioner became a citizen, he had to go back and file new
immediate relative petitions for each of his three kids.
Although a single petition by a green card holder can cover several
family members, if the immigrant wants to file for naturalization,
the immigrant may wish to, at the outset, file separate petitions
for each of his relatives, so as to avoid the situation of naturalizing
and then having some family members no longer being "under petition".
Please note that the above situation (where each family member
must have his own separate petition) applies only to immediate
relatives of U.S. citizens (spouse, minor child, and/or parent).
This rule does not apply to other petitions by U.S. citizens,
such as first preference (unmarried son or daughter of U.S. citizen
over 21 years of age), third preference (married son or daughter
of U.S. citizen), or fourth preference (brother or sister of U.S.
citizen). Those petitions would also cover or include minor children
and/or spouses where applicable.
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