Answered by South Florida Immigration Attorney Caroly Pedersen
Question: My mom came from Trinidad and got her green card in 2011 thru her American husband. I was over 21 so I couldn’t come to the US with her, but she filed for me right away. I got married in 2012 and in 2015 my mom got her naturalization. After that she got her citizenship and she filed for me again in 2016. I know that now that I am married it will take longer for me to immigrate. What I’d like to know is if we can request that I keep the original 2011 filing date due to the fact that I was in the system for so long before?
Answer: That’s a great question. It’s important to understand that the rules are very different for children of U.S. residents, compared with those of U.S. Citizens. With children of U.S. Citizens, if a parent files for a single adult child (F1 category) and the child later marries, the child simply changes to the F3 category and keeps the same original date of filing, called the “Priority Date”. The priority date is important because it determines where an immigrant is in the waiting line. However, for adult children of U.S. residents, there is only one category, F2B. That is for single adult children only. There is no immigration category for married children of U.S. residents. So, when a single adult child marries, the I-130 petition the U.S. Resident parent filed is automatically cancelled. There is no way to recapture the date that the original I-130 was filed when the child was single, since the marriage caused the original petition to be essentially void. When an adult single child of a U.S. resident waits until after their parent naturalizes and becomes a U.S. Citizen, they simply move to the F3 category and maintain the original priority date, the date the original I-130 was filed by the U.S. Resident parent.
In your circumstances, your priority date for the Immigrant Visa waiting line is July 2016. Right now, the visa line in the F3 category for married children of U.S. Citizens is 2005, so you have another 11+ years or so to wait. I hope this was helpful to you.
Question: I`m a resident and have my 10-year green card. I have a girlfriend from Dominican Republic that I met while we were in college and she had a student visa. She left the U.S. and is home now in DR, but has an American tourist visa and comes to visit me. We want to get married. What is the fastest way for me to bring her here to stay? I have another 1 year before I can apply for citizenship. Should we get married now? If we get married here and apply for her papers I know it`ll take longer since I`m not a citizen. However, in the meantime will she have the right to work in the US?
Answer: It’s really important to understand that spouses of residents are not allowed to stay inside or work in the U.S. (unless they are on another legal visa). If they do, they will be ineligible to obtain a Green Card. There is a big difference between the rights spouses of citizens have compared to those of residents. Residents cannot petition fiancées, whereas U.S. Citizens can.
In your situation, once you get married, you should have a spousal case filed on her behalf as soon as possible so she can get her place in the “visa line”. The visa line for spouses of Residents is now about 1 ½ years, so the sooner she is in the line, the better. There is no way for you to legally bring her to the U.S. to stay, unless she is eligible on her own for a work, student or other visa. Be aware once the spousal case is filed, she may not be eligible to obtain some types of work or student visas at the U.S. Consulate.
