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.

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As the spouse of a U.S. lawful permanent resident (green card holder,) you are in category 2A of the visa preference system. And as you probably know, you face a wait of typically three to five years 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.

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 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 green card and your petitioning spouse goes from being a lawful permanent resident to U.S. citizen, it is good news for you. You go from category 2A straight to immediate relative. This means that you jump off the waiting list and immediately move forward with your visa processing.

If your permanent resident spouse 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 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 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 petitioning spouse becomes a citizen, advise the government and send it a copy of your spouse’s citizenship certificate and your I-130 approval notice. The National Visa Center (NVC) will upgrade your status to immediate relative. The sample letter below shows how to explain this turn of events.

If the Petitioner and Beneficiary Divorce

If you and your permanent resident spouse get divorced after a visa petition has been filed or approved for you but before you apply for your immigrant visa or green card, you are out of luck. The visa petition is cancelled and you and your derivative beneficiaries 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 Derivative Children If a Beneficiary Dies

If you, as the visa beneficiary, were to die, your children would lose their opportunity for a visa as well -- unless your spouse has filed or can file a separate petition for them in category 2A or 2B.

If your family is in this situation, the U.S. permanent resident petitioner should ask USCIS to “recapture” the deceased parent’s Priority Date when the permanent resident submits 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.

If the Petitioner Who Has Become a U.S. Citizen Dies

If, in the years since your visa petition was filed, your spouse became a U.S. citizen but died before you had a chance to complete your application for a green card, all is not lost. Under a law passed in October of 2009, the surviving spouse of a U.S. citizen can petition for him or herself, regardless of the length of the marriage prior to the spouse’s death.

This changed the old law, which had required the couple to have been married for at least two years at the time the U.S. citizen died in order for the surviving spouse to self-petition. However, the petition must be filed within two years of your U.S. citizen spouse’s death (unless your spouse died before the passage of this new law—October 28, 2009—in which case your petition must have been filed within two years of the new law, that is, by October 28, 2011).

The form that you will use is USCIS Form I-360 (rather than the regular visa petition Form I-130). You are allowed to include your children who are under 21 years old on that petition. You will still have to show that you and your spouse had a bona fide marriage, and that you have not remarried.

As this is a fairly new area of the law, and USCIS has not yet written all of the needed implementing regulations, you would do best to consult with an immigration attorney if you find yourself dealing with the death of your petitioner.

If the Petitioner Loses Permanent Resident Status

If the permanent resident petitioner loses the right to live in the United States, 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 United States 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.

Even if a permanent resident has had a crime on record for a long time, he or she may not be safe. Recent laws have allowed USCIS to deport people for crimes that would not have made them deportable when the crime was committed. Since the goal of the law is to reunite families, it makes sense that the government would refuse to grant immigrant visas to the family members of former permanent residents.

What Happens When a Child Beneficiary Turns 21

If there is a chance that your child might turn 21 before his or her Priority Date becomes current, watch out! The minute a child hits age 21, he or she will automatically drop into a different visa category, from 2A to 2B.

The child can, however, subtract from his or her age the amount of time it took USCIS to approve the initial visa 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: your family’s visa petition has been approved, and 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 green card application. (Act quickly, however; the child has only a year after becoming eligible to submit the green card application.)

If the CSPA does not help, and your child does drop into category 2B, the child will face a wait of up to a few years before being eligible for a visa. This problem is known as “aging out.” (However, if your child turns 21 after your spouse has become a U.S. citizen, the prospects may be better.)

It can be very stressful when a child beneficiary is close to getting a visa or green card and is about to turn 21. But until your family’s Priority Date has become current or your spouse becomes a U.S. citizen, there is really nothing you can do.

What Happens When a Child Beneficiary Marries

In preference categories 2A (children of permanent residents, under age 21) and 2B (children of permanent residents, over age 21), the beneficiaries 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, their beneficiary status is revoked forever. Their only hope is for you or your spouse to become a U.S. citizen and file a new petition for them later.

If you plan to bring along your children in either the 2A or 2B 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.)

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. Howver, 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.

When this whole process began, your spouse may have simply entered your children’s names on the visa petition for you. This would have been enough for them to immigrate if your spouse had remained a permanent resident the whole time. To put this in more technical terms, your children were eligible to immigrate as your derivative beneficiaries when your spouse was a permanent resident, but once your spouse became a U.S. citizen, they lost their derivative beneficiary status. They now need to have visa petitions of their own.

Fortunately, it is not too late for your spouse to file separate visa petitions for your children even after having become a citizen. So long as the children are still unmarried, under age 21, and are your spouse’s natural children or legal stepchildren (that is, the marriage took place before they turned 18), they qualify as immediate relatives just like you. 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 have turned 21.

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 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 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 have turned 21. If your child has turned 21 and no separate visa petition was filed for him or her, 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 child’s natural parent or legal stepparent. However, if you don’t alert USCIS to the situation, your child won’t become an immediate relative like you. Instead, the child will be put into the first preference visa category, which is subject to annual quotas. The child will get a Priority Date, but it will be at the very end of the first preference waiting list.

Luckily, there is a remedy for children in this situation. When your U.S. citizen spouse files the new visa petition, he or she can ask USCIS not to put the child at the bottom of the waiting list, but to give the child the same Priority Date as the rest of the family, even in this new category. In other words, your spouse asks USCIS to pretend that a separate I-130 visa petition was submitted for the over-21-year-old at the same time that the visa petition for the whole family was submitted, perhaps years ago.

This is called “recapturing” a Priority Date. Below is a sample letter showing how to ask for a recapture. The petitioner also needs to include complete copies of the original I-130 visa petition, the original INS or USCIS approval notice showing the family’s old Priority Date, and the petitioner’s citizenship certificate.

Approval of recaptured dates is supposed to be automatic. Unfortunately, the USCIS Service Centers aren’t used to this procedure and may pay no attention to your request—even if you write the most compelling letter and include complete documentation. You might get an approval notice showing a new Priority Date rather than your family’s old one. Your only recourse would be to write many letters trying to get USCIS to correct the date (or to hire a lawyer).

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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 have children who may turn 21 before the process ends, or you know that your spouse is likely to apply for U.S. citizenship, you can avoid the hassles involved in recapturing Priority Dates. Your spouse should simply file separate petitions for them from the outset.

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