Being a Parent in a Visa Petition - Part II

This article is the second in a two-part series about some commonly recurring issues in applying for naturalization. Click here to read Part I.

My son (or daughter) has gotten married while my petition for him (or her) is pending. Will that delay my petition?

While the CSPA protects a child from aging-out, it does not protect him or her from marrying out. Thus, if the child of a permanent resident marries, then the petition is automatically (by law) revoked. If the child of a U.S. citizen marries, then he is knocked down to a lower category, which results in much stricter quota, resulting in more years of delay. In either case, waiting until the immigration interview to inform the officer of your child's marriage will not help. The effect of marriage is automatic and a delay in informing the Immigration Service only delays the inevitable and wastes the filing fees.

So, since your child's marriage can be so detrimental to him or her receiving permanent residency, does this mean he should marry, but not legally? Be careful with this tactic. If the country or the state in which the child resides recognizes common-law marriages, then the marriage will be valid for immigration purposes even without a marriage certificate and thus still effect the parent's visa petition. Also, even if the marriage is considered non-legal, the spouse and children won't be able to immigrate with your child when the visa does become available.

While the results of a marriage can be problematic for your child, you are advised to consult with an experienced immigration attorney to consider alternatives for bringing your child to the U.S.

What if I become a U.S. citizen while my petition is pending for my child?

If you are a permanent resident who has filed a petition for your child, and then naturalize while the petition is pending, then your petition deserves preferential treatment. This is also commonly known as "upgrading" the petition. If your child is still under 21 years of age when you naturalize, then the petition is upgraded to immediate relative status and your child can apply for permanent residency right away. If your child is over the age of 21 when you naturalize, then the petition will be bumped up to a higher category, still subject to a quota, but with less wait time.

One must properly notify the Immigration Service in order to upgrade the petition. You should consult an immigration attorney about doing this.

I filed a petition for my child and the Immigration Service has sent me a letter requesting proof of my paternity. What do I do?

A recurring problem with the father's petitions is the proving of paternity. If your child was born out-of-wedlock, or if your child's birth certificate of your child was not timely registered or does not bear the father's name, then the Immigration Service may required you to submit additional evidence of your relationship with your child. This may be done by providing secondary evidence of your relationship. Our firm has overcome many paternity issues and gained approvals by providing secondary evidence of paternity.

I hope this article proved useful for the parents who have filed or contemplate filing a petition for their children. Although there can be many pitfalls along the way, now you can recognize the embedded issues, and consult an experienced immigration attorney to help you navigate those issues.