13 Sep 2023 Parent’s Naturalization Resulted In VISA Denial
Dear Attorney Gurfinkel:
While I was an immigrant (green card holder), I filed a petition for my spouse and two children in the F-2A category. After their priority date became current and they were documentarily qualified, I went ahead and naturalized, while we were waiting for their interview.
At their interview, my wife was issued her visa, but my kids were denied. The Consul explained that because I naturalized, only my wife was eligible for a visa, and I must file new petitions for my children. I thought that naturalizing was supposed to be better for a case, but now we are in a worse position.
Is there any way my children can still be included in my petition? Is it true that naturalizing made my case worse?
Very truly yours,
LC
Dear LC:
Whenever a U.S. citizen petitions their spouse, parents, or children (called “immediate relatives”), there can be only ONE PERSON PER PETITION. No derivatives are allowed. Therefore, if a person petitions their parents, they must file TWO petitions: one for their mother and another for their father. They cannot file a single petition for both their mother and father. If a U.S. citizen has five minor children, the citizen must file five separate petitions. Similarly, if a U.S. citizen has a spouse and two children, the U.S. citizen would have to file THREE petitions: one for the spouse and two additional petitions for each of their two children.
All the other family and employment-based categories allow derivative family members, such as spouses and minor children. Therefore, when you petitioned your spouse and children when you were an immigrant, a single petition covered all of them: your spouse and both of your children. However, when you naturalized, and the law allows only one person per petition, only your wife was covered by the petition, and your children (who had been derivatives) fell off that petition.
In fact, the Foreign Affairs Manual (FAM), which is an Embassy regulation, addresses this exact situation and recommends that if a petitioner plans on naturalizing, they should file separate petitions for each of their family members:
“[I]f the petitioner intends to become a U.S. citizen before their spouse and children have immigrated to the United States, the petitioner should file separate IV petitions for any children who are currently deriving their immigration status through the spouse. That way, when the petitioner is naturalized, the petition according second preference status (F21) to the spouse, as well as those petitions according second preference status (F22) to any children, will be converted automatically to accord the beneficiaries IR1 (spouse) or IR2 (children). If, however, the petitioner does not file separate petitions for their children before naturalization, the children will lose their derivative status upon the petitioner’s naturalization, since the spouse’s status will automatically convert to IR1 and there is no derivative status for immediate relatives. The petitioner will then have to file new petitions on their behalf to accord them IR2 status.”
Unfortunately, your children can no longer be issued visas under your original petition, and you would have to file two new immediate relative petitions for the children. Naturalizing could also create problems for derivative children under petition in the F-2A category who may have qualified for age-out benefits under the Child Status Protection Act (CSPA). If they are already over 21 years of age and a new petition must now be filed, there could be questions about their age-out eligibility.
I know it is everyone’s dream to eventually become a U.S. citizen, after perhaps struggling for many years to legalize their status and finally getting a green card. They think naturalizing is simple and straightforward, and they can do it themselves. But as you can see, there are hidden traps and landmines that may affect your case. That’s why if you are considering naturalizing but are pursuing other immigration benefits, even for a family member, you should consult with an attorney first, because once you naturalize, the damage may have already been done.
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