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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 - 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 1/2 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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