Family Preference Petitions

Before we begin our topic for this show, there are a few items we would like to share with you from the Spring Conference of USCIS and the American Immigration Lawyers Association.

(1) The F-2A category for spouses and unmarried children under the age of 21 of permanent residence will go backwards. According to the Department of State, there is a lot of demand for visas in this category so such demand will require a retrogression of the F-2A cutoff date within the next several months. The F2A cut off date in now in September 2013. If it goes backwards, for example to January 2013, it will mean more waiting time for petitions filed after January 2013.

(2) I-130 immediate relative cases for spouses are taking around seven months for processing. It is hoped that this will go down to five months within the near fture.
(3) On Deferred Action for Childhood Arrivals (DACA) renewals, U.S.C.I.S. affirmed that it is meeting every day to make sure that everything is being done properly; that the agency is taking the program seriously; this is a top priority.

And now for our main topic of the show, Family Preference Petitions.

A US citizen may file an Immediate Relative Petition on behalf of his spouse, children (under the age of 21) or parents, or on behalf of his Fiancée. All other petitions fall into the Family Preference category and they all have a quota, or waiting time. Right now, the waiting time can range from as little as six months for an F2A petition to as long as 10 years or more for an F4 petition.

Family First Preference (F1), is for the unmarried, adult children (over 20 years old) of US citizens. Waiting time is now more than five years.

Family Second Preference (F2A) is for the spouse and unmarried minor children of Green Card holders. Waiting time right now is less than a year, though this will probably increase in the near future.

F2B petitions are for the unmarried sons and daughter of Green Card holders, over 20 years of age. Wait time is about seven years. There is no visa category for a married son or daughter of US permanent residents.

Family Third Preference (F3) is for the married sons and daughters of US citizens. The applicant’s children under 21 at the time of interview can accompany the parents to the US. This category has a wait time of more than 10 years.

Family Fourth Preference (F4) is filed by a US citizen for his married siblings and their children. This category has the longest wait time, right now about 13 years. Obviously, after such a long wait, the sponsor’s nephews and nieces may be over 20 years old by the time they have the visa interview.

The CSPA (Child Status Protection Act), allows the CIS processing time to be subtracted from the age of the children in cases where they have aged out, especially the F3 and F4 cases. For example, if the child is 25 years old, and the petition was pending with CIS for 8 years before approval, then those eight years could be subtracted from the actual age of 25, giving the child a CSPA age of 18, and allowing the child to accompany the parents.

The CSPA matter is currently waiting for a decision by the US Supreme Court. If their decision is favorable, it will be a great benefit for all of the aged out children.

Priority Dates: It is up to the US State Department to decide the waiting times for each category of petitions. The State Department releases a Visa Bulletin each month to announce visa availability. In order to apply for an immigrant visa (at a U.S. consulate abroad) or adjustment of status (with USCIS, if the beneficiary is in the U.S.), the beneficiary's priority date must be before to the date listed in the visa bulletin for his category. The Consulate cannot issue a visa before a petition has a current priority date.

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Q.1 I am a U.S. citizen and would like to file an immigrant petition for my adult son, who is married. Do I need to file separate petitions for his wife and children?
A.1. No, his spouse and children will be listed as derivative beneficiaries on the I-130 petition.

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Q.2. I am still a Permanent Resident and I filed an immigrant petition for my unmarried son a few years ago. His priority date is current now, but he has since married. Can he file an immigrant visa application anyway?
A.2. No, he is no longer eligible for an immigrant visa in that category. There is no visa category for married children of Permanent Residents. If you become a U.S. citizen, you may file a new immigrant petition for your son to classify him as a Married Son of a U.S. Citizen (F3). This will have a new priority date and a new, longer waiting time.

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Q.3. What happens if I naturalize before my child's (F2A) priority date is current?
A.3. If you naturalize before your child's 21st birthday, your child will be eligible for an immigrant visa as the immediate relative of a U.S. citizen. This remains true even if your child turns 21 before she files an immigrant visa application or adjustment of status application.


ROBERT MULLINS INTERNATIONAL www.rmiodp.com www.facebook.com/rmiodp
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