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Family Petitions: Being a Parent in a Visa Petition

Published on July 2010 | By Shahzad Ahmed - US Immigration Attorney with NeJame Law

Happy Father’s Day to all the fathers! As we observe this holiday, I feel compelled to discuss this topic in the context of immigration.

Being a parent is never easy and so why would it be any different in the immigration context. Many of our readers have asked questions about issues they have encountered while petitioning for their children. These range from children “aging out” to proving paternity. Below, I will answer some of these questions. Please note that the advice below presumes the regular regions of chargeability for an immigrant visa and may not apply to some countries. Also, the discussion of the Child Status Protection Act does not cover all the nuances involved in that complex area of the law.

My petition for my child was approved. Can she now get her green card?

It is important to keep in mind that the approval of a visa petition simply validates the petition. It confirms that the relationship Is valid. The approval by itself does not grant residency to the child nor grant the right to it.

Once the petition is approved, then we must see whether an Immigrant Visa is now available. A U.S. citizen petitioning for his or her child who is under 21 years of age is considered an immediate relative and has a visa immediately available. There is no quota for immediate relatives and thus when the petition is approved, the child is eligible to file for a green card. If the child is in the U.S., she can apply for adjustment of status. If the child is abroad, she can apply for an Immigrant Visa to enter the U.S.

But what if my child just turned 21 years old while my petition was pending? Does that mean he has aged out and has to wait longer to get a green card?

On August 18, 2002, Congress enacted the Child Status Protection Act (CSPA). This provides age-out protection to children who are beneficiaries of their parents’ visa petitions. Under the CSPA, if you are a U.S. citizen petitioning for a child under 21 years of age, and the child turns 21 while the petition is pending, then your child will be considered as remaining under 21 perpetually. Thus, turning 21 years old will not delay his or her permanent residency.

If you are a lawful permanent resident petitioning for a child then normally there is a quota , and thus will face a backlog. This is also referred to as awaiting a “priority date.” The quotas vary depending on whether the child is under 21 years of age (2A category) or over 21 years of age (2B category). So, while the Department of State is currently processing petitions filed for 2A in July 2008, the 2B category is backlogged to May 2003. Therefore, an “aging-out” can cause a serious delay in the petition.

The CSPA seeks to cure this aging-out by subtracting the pending time of the petition from the age of the child. The “pending time” is defined as the date of the filing of the petition, until the date the petition is approved or the visa becomes available, whichever is later. If under this formula, the child’s age is calculated as under 21, then he may benefit from his permanent resident parent’s petition.

My son (or daughter) has gotten married while my petition for him (or her) is pending. Will that delay my petition?

While the CSPA protects a child from aging-out, it does not protect him or her from marrying out. Thus, if the child of a permanent resident marries, then the petition is automatically (by law) revoked. If the child of a U.S. citizen marries, then he is knocked down to a lower category, which results in much stricter quota, resulting in more years of delay. In either case, waiting until the immigration interview to inform the officer of your child's marriage will not help. The effect of marriage is automatic and a delay in informing the Immigration Service only delays the inevitable and wastes the filing fees.

So, since your child's marriage can be so detrimental to him or her receiving permanent residency, does this mean he should marry, but not legally? Be careful with this tactic. If the country or the state in which the child resides recognizes common-law marriages, then the marriage will be valid for immigration purposes even without a marriage certificate and thus still effect the parent's visa petition. Also, even if the marriage is considered non-legal, the spouse and children won't be able to immigrate with your child when the visa does become available.

While the results of a marriage can be problematic for your child, you are advised to consult with an experienced immigration attorney to consider alternatives for bringing your child to the U.S.

What if I become a U.S. citizen while my petition is pending for my child?

If you are a permanent resident who has filed a petition for your child, and then naturalize while the petition is pending, then your petition deserves preferential treatment. This is also commonly known as "upgrading" the petition. If your child is still under 21 years of age when you naturalize, then the petition is upgraded to immediate relative status and your child can apply for permanent residency right away. If your child is over the age of 21 when you naturalize, then the petition will be bumped up to a higher category, still subject to a quota, but with less wait time.

One must properly notify the Immigration Service in order to upgrade the petition. You should consult an immigration attorney about doing this.

I filed a petition for my child and the Immigration Service has sent me a letter requesting proof of my paternity. What do I do?

A recurring problem with the father's petitions is the proving of paternity. If your child was born out-of-wedlock, or if your child's birth certificate of your child was not timely registered or does not bear the father's name, then the Immigration Service may required you to submit additional evidence of your relationship with your child. This may be done by providing secondary evidence of your relationship. Our firm has overcome many paternity issues and gained approvals by providing secondary evidence of paternity.

I hope this article proved useful for the parents who have filed or contemplate filing a petition for their children. Although there can be many pitfalls along the way, now you can recognize the embedded issues, and consult an experienced immigration attorney to help you navigate those issues.

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