Immigration Corner |Married adult children filing process is longer

Hello Mrs Walker-Huntington,

I have seen where you have assisted many with their questions and hope I will be afforded the same privilege. A friend of mine got married after his dad filed an I130 petition for him. When his papers came, he added his wife and two children to the application, which then came up to say that due to the numerical limitations of visa issuance by law, the petition was no longer eligible for further processing at this time. What are his options?

– S.B.

Dear S.B,

It would appear that your friend was filed for when he was single and then married while the petition for Alien Relative (I-130) that his father filed was pending. If the petitioner is an American citizen, and your friend was filed for as single, the process will be delayed. As the single, adult son of an American citizen, your friend would be in the F1 preference category. A married son is in the F3 preference category.

There is a huge difference in the waiting period between a single, adult son and a married son – an additional six years to wait on the visa. In August 2020, visas are available for persons in the F1 preference category who were filed for before August 15, 2014, but in the F3 preference category, visas are available for those who were filed for before June 1, 2008.

If your friend was filed for in the F1 category and did not advise the National Visa Center (NVC) of his marriage until he began processing his visa, they would advise that no visas are currently available for him. He now has to wait until his priority date (date when he was filed for) is current, i. e. when a visa is available for him in his new preference category.

If his father was a green card holder and he married while the petition was pending, his file would have been voided and closed. Your friend did the correct and legal action by notifying the NVC of his new wife and family although it will result in his waiting several more years to be able to migrate. Too often, people who marry proceed as if they are single and illegally accept their US residency. This illegal action can lead to the revocation of their US residency status and even US citizenship if they naturalise before the fraud is discovered.

When the visa becomes available in the F3 category, your friend and his entire family will be able to legally migrate. He needs to wait on the availability of a visa unless he and his wife are separated, in which case he can divorce and revert to the F1 category and proceed with his visa and those of his children.

Dahlia A. Walker-Huntington, Esq, is a Jamaican American attorney who practises immigration law in the United States and family, criminal, and international law in Florida. She is a mediator and special magistrate in Broward County, Florida. info@walkerhuntington.com.