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"AN 'APPROVED' RELATIVE PETITION
DOES NOT GIVE IMMEDIATE LEGAL AND/OR WORKING STATUS"
by Michael J. Gurfinkel, Esq.
Many people wonder if their approved relative petition
gives them immediate legal status, enabling them to stay, live,
and work in the U.S. For example, a parent might have petitioned
an adult child, or a U.S. citizen may have petitioned his or her
brother or sister, etc. Soon after filing this petition, they
receive a notice from the INS stating, "The above petition
has been approved". The family gets excited, thinking that
if the family member is in the Philippines, he or she will soon
be able to join them. Or, if the petitioned family member is already
in the U.S., he or she can begin working immediately. After all,
they have an approved petition. Right?
So that you know, unless you are the spouse,
minor child, or parent of a U.S. citizen ("immediate
relative") there is a backlog or waiting period for green
cards based on petitions filed by family members. This waiting
period can be anywhere from 3 to 30 years, depending on
the status of the petitioner (immigrant or U.S. citizen),
the age (under or over 21) and marital status (married/unmarried)
of the person being petitioned, and the relationship of the family
members to the petitioner (husband/wife, parent/child, brother/sister).
Just because a person has an approved petition,
does not mean that they are in immediate legal and/or working
status. In fact, on the back of the Approval Notice, the INS specifically
states:
"The filing of an application or petition does
not in itself allow a person to enter the United States and does
not confer any other right or benefit.
* * *
Approval of an immigrant petition does not convey
any right or status. The approved petition simply establishes
a basis upon which the person you filed for can apply for an immigrant
or fiance(e) visa or for adjustment of status.
A person is not guaranteed issuance of a visa or
a grant of adjustment simply because this petition is approved.
Those processes look at additional criteria."
As you can see, except for "immediate relatives",
the approval of a family petition does not confer
any immediate rights or benefits to the person being petitioned.
The family member must still wait several more years until their
priority date is current (or the visa is available), before they
are able to legally enter, live, and work
in the United States. Until their visa is available (or priority
date is current), they would be without legal status and,
technically, deportable if caught (unless they have some
other type of authorization or visa to live and/or work in the
U.S.).
If you or a family member are under a family petition
and are impatient with the long waiting time involved for the
visa to become available, you may wish to consider other
ways for the family member to be petitioned, such as through employer
sponsorship (called Labor Certification). Remember, if a person
has already been petitioned by a relative, they can still be petitioned
for a green card through as many different ways as are legitimately
available to them, all at the same time. (In addition,
under Section 245(i), if a family petition was filed for you before
January 14, 1998, it is possible for you to be interviewed in
the U.S. for a greencard under a new Labor Certification application
filed by an employer after January 14, 1998.) You should see a
reputable attorney, who can advise you and your family of possible
faster ways for the relative to immigrate to the U.S.
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