Is a new family petition faster than waiting for your pending case?

Dear Atty. Gurfinkel:

I was able to receive my green card, but then the priority date on my petition retrogressed (went backwards) before I was able to bring my family from the Philippines. I have now been waiting several years, and the priority date is moving forward so slowly. Is there any other, or faster, way that I can bring my spouse and kids to the US

Very truly yours,

W.T.

Dear W.T.:

Most family and employment petitions include not only the principal beneficiary, but also his or her spouse and minor children, who are considered “derivatives.” If you obtained your green card in the US, but your family is back home in the Philippines, your spouse and minor kids would be able to get a green card under your petition as “following to join” derivatives. However, in order to receive their green cards, the priority date on your petition must still be “current.” If your priority date later retrogressed (moved backwards), your family (who could have followed to join you), lost their chance and would have to wait until the priority date on your petition once again becomes current, which can sometimes take many years.

I know a case where a person was petitioned by her brother in 1991. Then, in late 2010, the priority date on the petition became current, and she and her husband got their green cards, but decided to wait a few months before bringing their kids to the US. Unfortunately, while waiting, their priority date retrogressed to January 1988. As a result, the children missed that immediate opportunity to come to the US, and must wait until the priority date once again moves back up to 1991, which, after all these years, it still has not done.

Similarly, someone may have been able to get a green card through an employer’s petition, but then the priority date retrogressed and got stuck in 2006. Therefore, his or her family now has to wait for the priority date to once again become current.

A possible alternative is rather than waiting for the priority date on an existing petition to become current for derivatives, perhaps a new, family-based petition could be filed in the F-2A category (spouseminor child), which could be a lot faster. For example, recently the priority date in F-2A moved forward and the “current” priority date is September 2013. This means that there is only an approximate one month backlog for petitions by green card holders of their spouses and minor children. (In the past, the waiting time could have been several years, and that is why many of these people decided to wait until the priority date on their existing petition became current again.) But now that the waiting time on a new F-2A is so short, it may be faster with a new petition, rather than waiting for your existing petition to be current again.

Of course, when I talk about a one month backlog, it does not mean that your family member will have a green card in hand in one month. It still takes several months for the petition to be approved, and transferred to the National Visa Center and to the US Embassy. However, this may be a faster alternative for people whose priority date retrogressed and it seems to be taking forever for the priority date to once again become current.

If this situation applies to you, you may want to seek the advice of an attorney, who can evaluate your situation and determine your best choices and options, and whether a new F-2A petition would be better, or if you need to stick with the existing petition out of concerns for the Child Status Protection Act, etc.

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