WHEN WOULD MARRIAGE HURT 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 it’s 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:
- Immediate Relative (IR) (minor child [under 21 years of age] of U.S. citizen):
If the immediate relative child (under 21) 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 could then be added to, or included under, the U.S. citizen parent’s petition (no need to file a new petition for spouse). As a married child of a U.S. citizen (F-3), however, she may wait ten or more years before her priority date becomes “current”, as opposed to an “immediate relative”, where a visa is immediately available. Remember, once you get married, even if you are still below 21 years old, you will no longer be considered a minor or immediate relative of a U.S. citizen, unless you divorce before your 21st birthday.
- 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 person’s spouse is also added to, or included under, the F-3 petition.
- Minor or Adult Child of Greencard-Holder Parent (F-2A and F-2B):
Marriage by a child being petitioned by an immigrant parent results in automatic revocation of the petition. A child under petition by a lawful permanent resident (LPR) parent should not marry at any time while the petitioner is still an LPR, up to the time child touches U.S. soil (if processed for a visa at the Embassy), or adjusts status in the U.S (if child is in the U.S.).
However, if the parent becomes a U.S. citizen before the child marries, the petition would not be void. It would first convert from F-2A or F-2B (single child of an immigrant) to either Immediate Relative Child (if the child is under 21 years of age at the time of the parent’s naturalization), or F-1 (adult child of U.S. citizen), and the original priority date is retained. 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), and the original priority date is retained. 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. The U.S. citizen parent would need to file a new petition for the married child.
- Married Child of U.S. Citizen (F-3):
As you can see, there are certain situations where it is “bawal” (or prohibited) to get married, while in other cases, it could result in longer waits and/or 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 green card. Don’t fool yourself by thinking “secret marriages” don’t count.
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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