Immigration Corner | How will my husband’s new status affect our children?

Dear Mrs Walker-Huntington,

My husband filed for our daughter and myself to join him in the US in September 2021. Our son was born in November 2022 and was also joined to the petition. However, since my husband became a US citizen after our son was born, he wants to update his status on the system. Will it affect our son? Will he need to file a separate petition for him? He will soon be one year old.

Thank you in advance.

NDT

Dear NDT,

I am assuming from your email that your husband was a Lawful Permanent Resident (LPR) when he filed for you and your daughter in 2021. As an LPR, when your husband filed for you, your daughter was a derivative and did not require a separate petition to be filed for her. However, if your husband upgrades the pending petition to that of a US citizen, your daughter will require a separate petition to be filed with US Citizenship and Immigration Services (USCIS).

The processing time for spouses and minor children of LPRs has increased and now visas are available in that category (F2A) for those persons filed for before February 8, 2019.

Your concern in your email was with your son, because he was born after the initial petition was filed and after your husband became a US citizen. The reality is that both children will require petitions to be filed with USCIS if your husband upgrades his status with USCIS. He has the option to keep the petition in the F2A category.

As the spouse of a US citizen, your petition would be transferred to an immediate relative petition, and, if not already approved, it would be processed as soon as possible and sent to the National Visa Center for further processing.

If your husband decides to upgrade to a US citizen petitioner, your two children would require new petitions to be filed for them at USCIS. This would cause your file and the new petitions for your children to be deemed immediate relatives, but you would be on a different timeline than the children. Ultimately, you might be able to all be processed if not at the same time, then within a close time frame for the visa interviews in the immediate relative category. This is a decision that you have to make as a family, considering the delayed time away from each other.

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 diversity and inclusion consultant, mediator and former special magistrate and hearing officer in Broward County, Florida. info@walkerhuntington.com