Wed | Nov 13, 2019

Immigration Corner | How does the filing system work?

Published:Tuesday | April 16, 2019 | 12:24 AM
Dahlia Walker-Hungtington
Dahlia Walker-Hungtington

Dear Mrs Walker-Huntington,

My husband's father filed for him and his children some time ago. His dad said he spoke to a lawyer who told him that the processing of the file is being done in alphabetical order.

Is that how the system works?

SB

Dear SB:

Filing for relatives to migrate to the United States does not operate on an alphabetical system.

If the beneficiary is an immediate relative, there is no waiting period – the filing is processed in due course. However, if the beneficiary is not an immediate relative, the petition is assigned to a category and has to wait on a visa to become available.

Immediate relatives are spouses of US citizens, parents of US citizens and under 21-year-old children of US citizens. Non-immediate relatives are:

• Over 21-year-old, unmarried sons and daughters of US citizens (F-1 category);

• Spouses and under-21-year-old children of green card holders (F-2A category);

• Over 21-year-old unmarried sons/daughters of green card holders (F-2B category);

• Married sons/daughters of US citizens (F-3 category);

• Brothers/sisters of US citizens (F-4 category)

You indicate that the filing was made for your husband and his children by his father, but you do not indicate if you were also included in that filing. I am therefore not sure if you are legally married or if you are in a common-law marriage. Consequently, I wouldn’t know if your husband was filed for as a married or unmarried son.

If the petition was made by a US citizen for his unmarried son, the petition would be in the F-1 category and if the son is married, the petition would be F-3. If the filing was F-1 and the son marries while the petition is pending, the category will change to F-3. If the petitioner is a green card holder and the son is unmarried, the category would be F2B. However, if the son marries while the father is still a green card holder, the petition dies because a green card holder cannot file for a married son/daughter.

Each category has a waiting period which is based on the number of visas available in any given category and the number of people who are waiting. Currently this is the approximate waiting time for the various family visa categories:

F1 - 7 ½ years

F2A - 2 years

F2B - 6 ½ years

F3 - 12 ½ years

F4 - 13 ¼ years

To determine how long the waiting period is in your case, you need to know when the petition was filed (priority date) and under what category the beneficiary falls. It has nothing to do with the last name of the beneficiary or the petitioner. It is possible that your husband’s father mis-understood his attorney, but if the attorney actually told him what you report, it may be time to find a new attorney who practises immigration law.

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