| PLEASE allow me to share a letter from
a client for this week’s column.
“Dear Atty. Gurfinkel:
“While I was still an immigrant, I filed a petition for
my spouse and minor children in the F-2A category (spouse
and/or minor children of green card holder). My
understanding is that all of my family members were covered
by that single petition.
“I later took the oath of citizenship, and am being told
that my petition for my family now covers only my spouse and
not my children. So, I need to file new, separate petitions
for each of my kids. Since all my family members were
previously covered under my F-2A petition, why do I need to
now file separate petitions for my kids?
“Very truly yours, L.D.”
Dear L.D.:
By law, a green card holder need only file one F-2A
petition to cover several family members, such as a spouse
(who is the “principal” beneficiary) and all minor children
(who are “derivative” beneficiaries). However, when the
green card holder naturalizes, the F-2A petition
automatically converts from F-2A (spouse/minor child of
green card holder) to immediate relative
(spouse/parent/child of U.S. citizen). That conversion
changes the classification of the spouse and children to the
status of “immediate relatives.” According to the Foreign
Affairs Manual, the Immigration and Nationality Act “does
not generally accord derivative status for family members of
immediate relatives as it does for preference applicants...A
U.S. citizen must file separate immediate relative petitions
for the spouse, each child and each parent.” In other words,
petitions by U.S. citizens of immediate relatives (spouse,
minor child, parents) allow only one beneficiary per
petition. Derivatives are not allowed.
In your case, when you became a U.S. citizen, only your
spouse (as the principal beneficiary) remained under your
original petition, since only one immediate relative can be
covered by a petition by a U.S. citizen. Your children, as
F-2A derivative beneficiaries, “dropped off” that petition.
Therefore, you must now file new petitions, one for each of
your children, so that they, too, will again be “under
petition.”
I know of one case where an immigrant had petitioned his
wife and three kids, under one petition. The priority date
in the F-2A category (green card holder petitioning spouse
and minor children) was already current, and the family was
already in the middle of immigrant visa processing at the
U.S. Embassy, when the petitioner took the oath of
citizenship. When the family went to the interview, only the
wife was entitled to the visa. Because the petitioner became
a citizen, he had to go back and file new immediate relative
petitions for each of his three kids.
Although a single petition by a green card holder can
cover several family members, if the immigrant wants to file
for naturalization, the immigrant may wish to, at the
outset, file separate petitions for each of his immediate
relatives, so as to avoid the situation of naturalizing and
then having some family members no longer being “under
petition.”
Please note that the above situation (where each family
member must have his own separate petition) applies only to
immediate relatives of U.S. citizens (spouse, minor child
and/or parent). This rule does not apply to petitions by
U.S. citizens for unmarried son or daughter (first
preference), married son or daughter (third preference), or
brother or sister (fourth preference). These petitions would
also cover or include derivatives (minor children and/or
spouses where applicable).
| (Editor’s note:
Michael J. Gurfinkel
has been an attorney for over 25 years, and is an active
member of the State Bar of California and New York, as
well as the American Immigration Lawyers Association and
the Immigration Section of the Los Angeles County Bar
Association. He has always excelled in school:
valedictorian in high school; cum laude at UCLA; and law
degree honors and academic scholar at Loyola Law School,
which is one of the top law schools in California. Website:
www.gurfinkel.com
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Telephone: 894-0258 or 894-0239
This is for informational purposes only,
and reflects the firm’s opinions and views on general
issues. Each case is different and results may depend on the
facts of a particular case. All immigration services are
provided by an active member of the State Bar of California
and/or by a person under the supervision of an active member
of the State Bar. No prediction, warranty or guarantee can
be made about the results of any case. Should you need or
want legal advice, you should consult with and retain
counsel of your own choice.) |
|
IMMIGRATION
