18 Apr 2024 Did You Marry Before Your Petitioner Naturalized?
Under U.S. immigration law, lawful permanent residents (LPR or green card holders) may petition their unmarried children, whether the child is under or over 21 years of age. The parent does not have to wait until they become a U.S. citizen to petition adult single children.
However, if the child marries BEFORE their parent naturalizes, the petition is considered VOID, even if the petition was filed while the child was still single. The child must remain single until they receive their green card. In such a case, you must ask yourself, “Was the parent already a U.S. citizen on the child’s wedding day?” If the answer is “no,” then the petition is void.
On the other hand, if the parent naturalized BEFORE the child’s marriage, the petition would still be considered valid but would convert to the F-3 category (married child of a U.S. citizen) where the waiting time for a visa might be 10 or more years longer than had the child remained single.
Many people have consulted with me where the child (beneficiary) married before the petitioning parent naturalized. In that case, the parent should immediately file a new petition in the F-3 category, although they would now receive a new priority date based on the date the new F-3 petition is filed.
Other families do nothing, despite the beneficiary marrying, and mistakenly believe the original petition is still valid. They may even start receiving paperwork from the National Visa Center (NVC) to start processing the case based on the original F-2B petition (unmarried child of green card holders, 21 years old or older). Just because you receive forms and notices from NVC does not mean the beneficiary is still eligible for the visa. Instead, it may mean the family did not notify the NVC of the marriage, and the NVC still thinks the person is single. Usually, the oversight is caught by the U.S. Embassy, at which time the person’s visa is refused, either because they are not eligible (because the beneficiary married before the petitioner naturalized) or the priority date is no longer current (if the petitioner naturalized before the marriage but the case is converted to F-3).
However, if the child’s marriage is considered VOID under the applicable family code (such as no marriage license obtained, bigamous marriage, etc.) and is declared null and void through an annulment proceeding, it could be possible to revive or keep the original petition and priority date. This is because if the child’s marriage is void, then the petition remains valid.
If you have petitioned a single child and have issues about the validity of the petition in light of the child’s marriage, you may want to consult with an attorney to make sure the petition is still valid and on track.
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