Thu | Oct 6, 2022

What's my status?

Published:Tuesday | February 16, 2010 | 12:00 AM

Hi Mrs Huntington,

I have been married for seven years, but separated for the last three to four. I was unpleasantly surprised when I went to the embassy and I found out that my father-in-law had included me in his children's filing. I had consented to this before the separation but did not know he would proceed since I am no longer living with his son.

I used to travel prior to this new development, but because of certain inconsistencies with my responses, I was turned down the last time.

I want to know what are the chances of this filing going through with our current status, and the implications of it not going through on my ability to again enter the US?

- LL

Dear LL,

When a US citizen parent files a petition for permanent residency for their married child, they only file for their child. That child is the direct beneficiary of the petition. While the application asks for the names of the married child's spouse and children at the time of the initial filing, it is the child's spouse at the time of the visa processing and all children who have not "aged out" who are eligible to migrate with the beneficiary. The spouses and children are deemed to be the derivative beneficiaries of the petition.

If the direct beneficiary divorces and remarries, or if additional children are born to or acquired by the direct beneficiary, the new spouse and new children would be able to migrate with the direct beneficiary.

As the derivative beneficiary of a non-immigrant visa petition, you should indicate on any non-immigrant visa application that an immigrant visa petition is pending on your behalf and make sure to indicate who filed the petition. It is imperative that you answer all the questions on any document truthfully but failure to answer questions truthfully on any United States Department of Homeland Security or United States Department of State forms is viewed as fraud by the relevant US government agency. Allegations of fraud to obtain immigration benefits gives rise to an applicant for admission to the United States being denied and deemed inadmissible. One can only overcome inadmissibility to the US if a waiver of that inadmissibility is available.

If you are not currently in a viable marriage with your spouse, you are not eligible to migrate with him when your father-in-law's petition for your husband becomes current. If you have been separated for four years and your marriage is irretrievably broken, it is in both yours and your husband's best interest to obtain a divorce. The divorce would take your husband from the third preference category (married child of a US citizen) to the first preference category (unmarried adult child of a US citizen). It would in effect cut his waiting time on the green card from almost nine years to just under six years.

Assumption magnified

The divorce would allow you to apply for a non-immigrant visa and truthfully state that no immigrant visa petitions are pending on your behalf. When an applicant for a non-immigrant visa has a pending immigrant petition, it magnifies the assumption that the visitor intends to migrate and increases the likelihood that the visa application will be denied.

When your husband's petition gets to the stage where the visa fees are to be paid, you should not pay your fee and proceed with the process unless the two of you have reconciled and are living together as husband and wife.

You did not indicate what inconsistencies in your answers to the US consular officer resulted in your denial. If the inconsistencies were more than the issue of whether you had an immigrant visa petition pending, then the chances of you ever receiving a non-immigrant visa is greatly reduced.You should deal with the issue of your marriage and then depending on your inconsistent answers to the consular office decide when and whether to reapply for a non-immigrant visa.

Dahlia A. Walker-Huntington is a Jamaican-American attorney who practices in Florida in the areas of immigration, family, corporate and personal injury law. She is a mediator, arbitrator and special magistrate in Broward County, Florida. or