How Spouses and Children of Permanent Residents Can Change Visa Category
A green card holder's spouse and children may move faster or slower in their quest for a green card depending on things like whether the petitioner becomes a U.S. citizen.
As the spouse or child of a U.S. lawful permanent resident (green card holder), you are in category F2A of the visa preference system. And as you probably know, you face a wait for a visa to become available to you, due to annual limits on the number allotted in this category. Therefore, you need to learn how to keep or improve on your visa category, because other categories have longer or shorter waits.
It is possible for people to move into a different preference category, which will speed up or delay their waiting time. For example, you would get a visa quicker—by moving to immediate relative category—if your spouse or parent became a U.S. citizen. Or, life changes can push people out of their visa category, and into a lower one or out of the race altogether. Here are the most typical situations affecting married couples and their children.
If a Permanent Resident Petitioner Becomes a Citizen
If you are awaiting a marriage-based or parent-based visa or green card and your petitioning spouse or parent goes from being a lawful permanent resident to U.S. citizen, it is good news for you. You go from category F2A straight to immediate relative. This means that you jump off the waiting list and immediately move forward with your visa or green card processing.
If your permanent-resident spouse or parent qualifies for U.S. citizenship, he or she would be wise to apply as soon as possible. Most permanent residents can apply within five years of receiving their residence. (This in effect changes to four years if your spouse or parent received residency as a refugee or through political asylum, because their residency is backdated to either when the refugee entered the U.S. or when the asylee was approved for asylum; and is also less for some U.S. military personnel.) Your spouse or parent must also, in order to apply for naturalization, be of good moral character, meet certain U.S. residency requirements, and be able to pass a test on the English language and U.S. history and government.
If your petitioner becomes a citizen, you'll need to advise the U.S. government. For how to do this, see Sample Letter Telling U.S. NVC That You’re Now a Citizen, So Your Family Are Now Immediate Relatives.
What Happens to Your Children When Your Spouse Becomes a U.S. Citizen
If your spouse becomes a U.S. citizen, it will help you immigrate more quickly. The same is true for your children’s immigration. However, there is a twist. Children of U.S. citizens need to have their own visa petitions (Forms I-130) on file with USCIS in order to immigrate as the children of a U.S. citizen. They cannot enjoy the benefits of that parent’s new citizenship if they are merely named on their immigrating parent’s petition (Form I-130).
When this whole process began, the U.S. petitioner may have simply entered the spouse’s or children’s names on the I-130 visa petition. This would have been enough for them to immigrate if the U.S. spouse had remained a permanent resident the whole time. To put this in more technical terms, your children were eligible to immigrate as “derivative” beneficiaries when the U.S. spouse was a permanent resident, but once that person became a U.S. citizen, they lost their derivative beneficiary status. They now need to have visa petitions of their own.
Fortunately, the U.S. citizen spouse can now file separate visa petitions for your children, so long as they are still unmarried, under age 21, and are your U.S. citizen spouse’s natural children or legal stepchildren (that is, you and your U.S. spouse got married before your child turned 18). As immediate relatives, they will be able to immigrate at the same time as you. It may take a few months for the new visa petitions to be approved, but for most children, it should all work out in the end.
However, there are three groups of children who are, to varying degrees, still left out in the cold: those who have married, those who are not your spouse’s legal stepchildren, and those who turned 21 after your spouse becomes a U.S. citizen but before getting their visa or green card.
Children who have married. Your children who have married could not have immigrated with you when your spouse was a permanent resident, so your spouse’s U.S. citizenship does not actually make their situation worse. In fact, it could improve their situation if your spouse is the children’s natural father or legal stepfather, because your spouse can file a visa petition for them in the third preference category.
Children who are not your spouse’s legal stepchildren. As part of filing new visa petitions for your children, your U.S. spouse will have to prove that he or she has a direct relationship with each child, either as natural parent or legal stepparent. To be their legal stepparent, your spouse will have to show that your marriage took place before the child turned 18. If it didn’t, then that child cannot immigrate until you yourself become a permanent resident and file a second-preference visa petition for your child.
Children who turn 21. If your child turns 21 after your spouse becomes a U.S. citizen, and your spouse never filed a separate visa petition for the child, you’re in for some extra work. As with your other children, your U.S. citizen spouse can file a new, separate visa petition if he or she is the son or daughter’s natural parent or legal stepparent. The son or daughter will be put into the first preference visa category (or third preference if they marry), which is subject to annual quotas. The son or daughter will get a Priority Date, but it will be at the very end of the waiting list.
If the Petitioner and Spouse Divorce
If you and your permanent resident spouse get divorced after a visa petition has been filed or approved for you but before you get your immigrant visa or green card, you are out of luck. The visa petition is cancelled and you and your any of your children under age 21 lose your green card eligibility.
There is an exception for immigrants who are victims of emotional or physical abuse by their spouse. They can file a special self-petition (Form I-360) any time until the divorce becomes final, or for two years afterward, if they can show that the divorce was related to the domestic violence.
What Happens to Children If a Visa or Green Card Applicant Dies
If you, as the immigrating person applying for a visa or green card, were to die, your children would lose their opportunity for a visa or green card as well—unless your U.S. spouse has filed or can file a separate petition for them in category F2A or F2B.
If your family is in this situation, the U.S. permanent resident petitioner should ask USCIS to recapture the deceased parent’s Priority Date (that is, keep the original place in the visa wait line) when submitting the new visa petitions. If USCIS assigns the deceased parent’s date to the children, the children won’t have to start the waiting period all over again.
To make such a request, the U.S. petitioner, when filing the I-130, should include a request letter, with a copy of the approval notice for the previous I-130.
If the U.S. Permanent Resident Petitioner Dies
The general rule is that if your petitioner dies before you get your visa or green card, you're out of luck—you won't get the visa or green card. Fortunately, there are some exceptions to that rule.
If, after your visa petition was filed, your petitioning spouse became a U.S. citizen, you can continue with the immigration process. The I-130 gets converted automatically to an I-360, which is the USCIS form that widows and widowers use to request a visa or green card. The I-360 won't be approved, however, if you remarry before getting the visa or green card. For more on this topic, see What If I Die Before the Immigrant I'm Sponsoring Gets a Green Card?
If the U.S. petitioner was your parent, then even if that person became a U.S. citizen, you won't benefit from the automatic conversion described above.
If your petitioning spouse or parent was still a permanent resident when he or she died, there's an exception limited mainly to adjustment of status applicants. If you were "residing" in the U.S. when your spouse or parent died, and you're still residing in the U.S. on the date the I-130 or visa or green card application is decided, the immigration process can go forward, unless USCIS thinks there's a good reason for it not to. If you're the spouse and you have children who were included in the petition, they can get their visa or green card, too. What's more, if you don't meet the residency requirement but one of your children does, the whole family becomes eligible.
For people who can't benefit from one of the exceptions, your best bet is to ask for "humanitarian reinstatement" of the I-130. See Can I still get a green card if my petitioning relative died?
If the Petitioner Loses Permanent Resident Status
If the permanent resident petitioner loses the right to live in the U.S., the immigrant applicants lose the right to live there also. In theory, permanent residence or a green card gives a person the right to live in the U.S. permanently. Nevertheless, this right can be taken away for any of various reasons. If, for example a permanent resident spends many months overseas, USCIS may decide that he or she abandoned U.S. residency and refuse to let the person reclaim it. Or, if the petitioner commits certain crimes, his or her permanent residency could be taken away and the person could be deported.
What Happens When a Child Turns 21
If you’re a U.S. citizen who filed a petition for your child before he or she turned 21, but your child turns 21 before getting the visa or green card, you don’t have to worry. Your son or daughter can still get the visa or green card as an immediate relative “child.” For more on this, see How the Child Status Protection Act (CSPA) Helps Immediate Relatives of U.S. Citizens.
If you’re a U.S. permanent resident in this situation, however, watch out! The minute a child hits age 21, if a visa or green card has not become available yet, he or she will automatically drop into a different visa category, from F2A to F2B. Your son or daughter will face a longer wait before being eligible for a visa. This problem is known as “aging out.”
There is a possible remedy for aging out, however. When calculating a child’s age, you can subtract the amount of time it took USCIS to approve the I-130 petition. This is a protection created in 2002 by the Child Status Protection Act (CSPA). Basically, you have to wait until two events have occurred: the visa petition has been approved, and a visa or green card has become available (that is, the child’s Priority Date has become current). At that time, you add up the number of days that the visa petition was pending with USCIS, and subtract it from the child’s actual age. If the result of the calculation is a number less than 21, the child may continue with the visa or green card application. (Act quickly, however; the child has only a year after becoming eligible to submit the visa or green card application.)
To better understand how CSPA works, see How the CSPA Helps Family-Based Preference Relatives and Derivative Beneficiaries.
If you are a U.S. permanent resident who petitioned for your spouse and your spouse’s children when they were under 21, but the children turn 21 before your spouse is able to get the visa or green card, the children lose the ability to get their visa or green card as derivatives of the immigrating parent. That parent could (upon obtaining a U.S. green card) then turn around and file a new petition for the son or daughter (in the F2B category), but it will take years to finalize.
Better yet, if you are also the parent or a stepparent (you married your spouse while the children were under 18), you could file the petition, and also ask USCIS not to put your son or daughter at the bottom of the F2B waiting list, but to give the same Priority Date your spouse (and your son or daughter) had when you filed for them. This way, your son or daughter will get credit for all the time spent waiting before turning 21. USCIS will treat the case as if you had filed a separate I-130 visa petition for your over-21-year-old child at the same time that you submitted the visa petition for your spouse, perhaps many years ago.
This is called “recapturing” a Priority Date. See Sample Letter Requesting Recaptured Priority Date on Behalf of a 2A Child Turning 21 for details on how to ask for a recapture.
Plan ahead—submit separate I-130 visa petitions for any children who will soon turn 21. If you are at the beginning of the immigration process, and your spouse has children who may turn 21 before the process ends, you can avoid the hassles involved in recapturing Priority Dates. You should simply file separate petitions for her children from the outset, if they’re also your children or stepchildren.
What Happens When a Child Marries
If you’re a U.S. citizen petitioning to get your child a visa or green card, but before your child gets it he or she marries, it’s going to create a wait for your child to get the visa. That’s because married persons are no longer considered immediate relative “children” for immigration purposes. The married child will automatically fall into the third family preference (F3).
For children in preference categories F2A (children of permanent residents, under age 21) and F2B (sons and daughters of permanent residents, over age 21), they must be unmarried at the time they receive a visa and enter the U.S. or (if adjusting status in the U.S.) are approved for the green card. If your children marry, they lose their ability to immigrate on the petition you filed. You could file another petition for them once you or your spouse become a U.S. citizen, or, if they were to become unmarried later (through divorce or death of their spouse), you or your spouse could file a new petition for them even without becoming a U.S. citizen. Either way, they would not retain the priority date from your original petition.
The rule is the same if you filed a petition for your spouse, and his or her children were going to get a visa or green card as “derivatives,” but then married.
If you plan to bring along your children in either the F2A or F2B categories, make sure to advise them not to marry until after they get their green card. USCIS may not find out about the marriage now, but it often catches such cases when the immigrant applies for U.S. citizenship. It would then strip them of the green card.