A new family petition could be faster than waiting for your pending employment case

A new family petition could be faster than waiting for your pending employment case

Dear Atty. Gurfinkel:

I received my green card through my employer’s petition, but the priority date on my petition retrogressed (went backwards) before I was able to bring my family from the Philippines. I have now been waiting several years, and the priority date is moving forward so slowly. Is there any other, or faster, way I can bring my spouse and kids to the US?

Very truly yours,

Dear W.T.:

Most family and employment petitions include not only the principal beneficiary, but also his or her spouse and minor children, who are considered “derivatives.” If you obtained your green card in the US, but your family is back home in the Philippines, your spouse and minor kids could receive green cards under your petition as “following to join” derivatives. However, in order to receive their green cards, the priority date on your petition must be “current.” If your priority date retrogressed (moved backwards), your family would have to wait until the priority date on your petition once again becomes current, which can sometimes take many years.

A possible faster alternative is to file a new F-2A family petition, rather than waiting for the priority date on an existing employment based petition to become current again for your derivatives. For example, the priority date in F-2A for visa issuance is September 2014, as of February 2016. For employment-based petitions, the priority date for visa issuance is January 2008.

This means if you adjusted status, and the priority date on your employment based petition retrogressed, it may be faster to file a new family based petition than to wait for the priority date on your employer’s petition to become current again.

If this situation applies to you, you may want to seek the advice of an attorney, who can evaluate your situation and determine your best choices and options, and whether a new F-2A petition would be better (or faster), or if you need to stick with the existing petition out of concerns for the Child Status Protection Act, etc.

Michael J. Gurfinkel is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.


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