‘When would marriage affect my petition?’

Dear Atty. Gurfinkel:

I am single and under petition. I have a common-law spouse, whom I would like to marry, but I am receiving conflicting advice and information about whether its OK to marry and the effect that marriage would have on my petition.

When would marriage affect the validity of a person’s petition?

Very truly yours,

S.G.

Dear S.G.:

The following are some of the various petition categories and the effect marriage would have on them:

1. Immediate Relative (minor child [under 21 years of age] of U.S. citizen):

An immediate relative single child is "immediately" eligible for a visa. If the immediate relative child marries, it results in the automatic conversion (or reclassification) of the petition from IR to F-3 (married child of U.S. citizen). When the petition is "converted", the be-neficiary keeps the original priority date, and is not required to have the petitioner file a new petition. The spouse is then added to, or included under, the petition. As a married child of a U.S. citizen (F-3), however, she may wait ten or more years before the married child’s priority becomes "current".

2. Single Adult Child of U.S. Citizen (F-1):

Marriage of a single adult child of a U.S. citizen (F-1) results in the automatic conversion (or reclassification) of the petition from F-1 to F-3 (married child of U.S. citizen). When the petition is "converted", the beneficiary keeps the original priority date, and is not required to have the petitioner file a new petition. The spouse is also added to, or included under, the F-3 petition.

You should also note that at the present time, there is only a few months difference in waiting time between single adult children of U.S. citizens (F-1) and married children of U.S. citizens (F-3). Therefore, if a person was petitioned in the F-1 category, but the F-3 priority date is already current, they should evaluate and consider whether or not to get married. The marriage would automatically convert the petition from F-1 to F-3. The spouse would then be included in the petition. Since the priority date for F-3 would be current, it would not affect the person‚s waiting time. Also, the spouse could be added on, or included under, the original petition, rather than being left behind and then be petitioned as the spouse of an immigrant (F-2A), with a waiting time of five or more years.

3. Minor or Adult Child of Greencard-Holder Parent (F-2A and F-2B):

Marriage by the child of an immigrant results in the petition being automatically revoked (or voided). A child under petition by an immigrant parent should not marry at any time while the petitioner is an immigrant, up to the time they touch U.S. soil (if processed for a visa at the Embassy), or adjust status in the U.S.

However, if the immigrant’s parent naturalized before the child marries, the petition would not be void. It would first convert from F-2A or F-2B (child of an immigrant) to either Immediate Relative Child (if the child is under 21 years of age), or F-1 (adult child of U.S. citizen). Then, if the beneficiary marries (after the petitioner’s naturalization), the petition would once again convert to F-3 (married child of U.S. citizen). But, if the child marries before their immigrant parent naturalizes, the petition is void. In that case, the parent’s subsequent naturalization would not save or revive the petition.

4. Married Child of U.S. Citizen (F-3):

Of course marriage is permissible in the F-3 category, as that is the very reason the person is classified as a "married" child of a U.S. citizen.

As you can see, there are certain situations where it is "bawal" (or prohibited) to get married, while in other cases, it may be to your advantage to get married. That is why if you have questions about whether or not it is "safe" to marry, I suggest that you seek the advice of a reputable attorney, who can evaluate your situation and advise you on whether or not it is best to get married before getting your greencard.

In a future article I will discuss more situations where marriage may (or may not) affect a person’s eligibility for a visa.

Three offices to serve you: LOS ANGELES: (818) 543-5800; SAN FRANCISCO: (650) 827-7888; PHILIPPINES: 894-0258 or 894-0239.

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WEBSITE: www.gurfinkel.com