|  WHEN
WOULD MARRIAGE AFFECT MY PETITION?
(PART I)
by Michael J. Gurfinkel, Esq.
Dear Atty. Gurfinkel:
I am single and under petition. I have a common-law spouse, whom
I would like to marry, but I am receiving conflicting advice and
information about whether its OK to marry and the effect that
marriage would have on my petition.
When would marriage affect the validity of a person’s petition?
Very truly yours,
S.G.
Dear S.G.:
The following are some of the various petition categories and
the effect marriage would have on them:
1. Immediate Relative (minor child
[under 21 years of age] of U.S. citizen):
An immediate relative single
child is “immediately” eligible for a visa. If the
immediate relative child marries, it results in the automatic
conversion (or reclassification) of the petition from IR to F-3
(married child of U.S. citizen). When the petition is “converted”,
the beneficiary keeps the original priority date, and is not required
to have the petitioner file a new petition. The spouse is then
added to, or included under, the petition. As a married child
of a U.S. citizen (F-3), however, she may wait ten or more years
before the married child’s priority becomes “current”.
2. Single Adult Child of U.S. Citizen (F-1):
Marriage of a single adult child
of a U.S. citizen (F-1) results in the automatic conversion (or
reclassification) of the petition from F-1 to F-3 (married child
of U.S. citizen). When the petition is “converted”,
the beneficiary keeps the original priority date, and is not required
to have the petitioner file a new petition. The spouse is also
added to, or included under, the F-3 petition.
You should also note that at
the present time, there is only a few months difference in waiting
time between single adult children of U.S. citizens (F-1) and
married children of U.S. citizens (F-3). Therefore, if a person
was petitioned in the F-1 category, but the F-3 priority date
is already current, they should evaluate and consider whether
or not to get married. The marriage would automatically convert
the petition from F-1 to F-3. The spouse would then be included
in the petition. Since the priority date for F-3 would be current,
it would not affect the person’s waiting time. Also, the
spouse could be added on, or included under, the original petition,
rather than being left behind and then be petitioned as the spouse
of an immigrant (F-2A), with a waiting time of five or more years.
3. Minor or Adult Child
of Greencard-Holder Parent (F-2A and F-2B):
Marriage by the child of an immigrant results in the petition
being automatically revoked (or voided). A child under petition
by an immigrant parent should not marry at any time while the
petitioner is an immigrant, up to the time they touch U.S. soil
(if processed for a visa at the Embassy), or adjust status in
the U.S.
However, if the immigrant’s
parent naturalized before the child marries, the petition would
not be void. It would first convert from F-2A or F-2B (child of
an immigrant) to either Immediate Relative Child (if the child
is under 21 years of age), or F-1 (adult child of U.S. citizen).
Then, if the beneficiary marries (after the petitioner’s
naturalization), the petition would once again convert to F-3
(married child of U.S. citizen). But, if the child marries before
their immigrant parent naturalizes, the petition is void. In that
case, the parent’s subsequent naturalization would not save
or revive the petition.
4. Married Child of U.S.
Citizen (F-3):
Of course marriage is permissible in the F-3 category, as that
is the very reason the person is classified as a “married”
child of a U.S. citizen.
As you can see, there are certain situations where
it is “bawal” (or prohibited) to get married, while
in other cases, it may be to your advantage to get married. That
is why if you have questions about whether or not it is “safe”
to marry, I suggest that you seek the advice of a reputable attorney,
who can evaluate your situation and advise you on whether or not
it is best to get married before getting your greencard.
In a future article I will discuss more situations
where marriage may (or may not) affect a person’s eligibility
for a visa.
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