Adding, removing family members from petitions

Many people are confused as to which family members are and are not included under a family or employment-based petition. What is important is not only the circumstances that exist at the time the petition is filed but also the circumstances that exist when the visa is available (or the priority date is current). Therefore, although a child may have been under 21 when the petition was filed, their eligibility for a visa is ordinarily evaluated when the priority becomes current.

There are several circumstances or events that may occur after a petition is filed that could also affect a person’s eligibility for a visa, such as the marriage of a beneficiary, the death of the petitioner, etc.

Marriage of beneficiary: A petition may have been filed while the beneficiary was single. However, if that beneficiary later gets married, it could affect his or her eligibility for a visa, even though he or she was single at the time the petition was filed. For example, if petitioned by an immigrant parent (F-2B), a beneficiary’s marriage voids the petition. You cannot argue or make the excuse that they were single when the petition was filed. They must remain single until they get their green card. Also, secret marriages are not allowed!

If under petition by a US citizen parent (IR or F-1) and the child marries, the petition may still be valid, but the waiting time for the visa would be at least 10 or more years longer. If the child was a derivative child under their parent’s petition, such as the grandchild of the petitioner, and married at age 19, he or she would no longer be included in the petition.

Death of petitioner: Although a petitioner is clearly alive when the petition is filed, if, Heaven forbid, the petitioner dies before the visas are issued, it could result in the automatic revocation of the petition unless the beneficiaries qualify for humanitarian revalidation/reinstatement or, if they were in the US at the time of the petitioner’s death, could qualify under Section 204(l), or the “Survivor Law.”

Aging out of child: Although a child may have been under 21 when the petition was filed, once they turn 21, they would be considered to have “aged out” and no longer included under the petition. However, it could be possible the child may qualify for age-out benefits under the Child Status Protection Act (CSPA), which has a mathematical formula for computing a child’s age (based on the length of time the petition was pending between filing and approval and subtracting that time from the child’s age). Note: for minor children of US citizen parents (immediate relatives), there is no mathematical formula computations. For those petitions, what is important is that the petition be filed before the child’s biological 21st birthday.

If there are any changes in circumstances or conditions since the time the petition was filed, such as those listed above, I would suggest that you seek the advice of a reputable attorney who can evaluate your situation and determine which family members are still eligible under your petition.

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