Tue | Oct 19, 2021

Immigration Corner | Will marriage affect the filing?

Published:Tuesday | August 3, 2021 | 12:06 AM
Dahlia Walker-Huntington
Dahlia Walker-Huntington
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Dear Mrs Walker-Huntington,

I have a question regarding marriage and filing. My son’s father is currently being filed for filing, which started in 2019. We are not married, but would like to do so. However, we don’t want it to affect the filing process. His mother is a green card holder but not yet a citizen because she won’t apply, even though she is more than qualified to do so.

Will getting married change or affect the process?

Thank you.

KB

Dear KB,

This is an area of US immigration law that causes a lot of distress to families who want to be reunited, so I am very happy that you have reached out with an inquiry and not just proceed.

A green card holder/US resident cannot file a petition/sponsor a married son or daughter. If a US resident parent filed for their unmarried son or daughter and that son or daughter marries while the petition is pending, that petition becomes void/invalid.

If the petition begins when the parent is a resident and the parent becomes a US citizen, and then the son or daughter marries – the petition can change category. It will move from the F2B category (unmarried adult son/daughter of green card holder) to the F3 category (married son/daughter of US citizen). That move will increase the waiting period by a number of years, thus delaying the availability of a green card; but it will not void the petition as in the case if the parent remains a resident.

Another angle to this scenario is where the beneficiary son/daughter marries, and no one advises the US government and the son/daughter receives the visa as an unmarried son/daughter – that is immigration fraud. Assuming that the beneficiary is untruthful and gets away with this fraud, they will never be able to sponsor their spouse, and, in some cases, not even their children. They will never ever be entitled to their green card that they accepted in the wrong category, and will be looking over their shoulder because of the deception. They will, also, forever be subject to removal from the United States when discovered.

In some instances, people also innocently marry after they have been interviewed at the US Embassy but before they make an entry as an unmarried son/daughter. This is also not allowed. You must enter the United States in the unmarried category in which you were sponsored.

Your son’s father has a few years left to wait for a visa to be available. He is in the F2B category and it is taking five to six years for a visa to become available. Patience and honesty are the routes you must take, and further consultation with an immigration lawyer to get specific direction in your matter and all your options.

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