In a previous article, I discussed that commencing August 1, 2013, the priority date for F- 2A petitions (spouses and minor children of green card holders) will be current. This means that spouses and minor children of green card holders would be eligible to file for adjustment of status and work authorization regardless of their priority date (or the date when the petition was filed). Theoretically, a green card holder could file a petition, as well as adjustment of status and work authorization all together, starting on August 1, 2013.
However, before you rush out and start filing, you have to make sure that you are eligible and qualified:
• The beneficiary (the family member who is under petition) must be in status, or if out of status, must have the benefit of section 245(i). If you’re out of status and do not have section 245(i), then you would not be eligible to file for adjustment of status.
• Is the beneficiary a crewman or jump ship? Entered the US without inspection (EWI)? If so, the beneficiary would not be eligible to file for adjustment of status unless “grandfathered” under section 245(i)
• Did the beneficiary enter as a fiancée (K-1), but did not marry the American who filed that fiancé petition? The beneficiary would not be eligible to file for adjustment of status through any other spouse’s petition, whether that spouse is a citizen or immigrant.
• Did the beneficiary commit any kind of fraud, such as entering the US under an assumed name? In that situation, a fraud waiver may be required, demonstrating “extreme hardship” on the appropriate qualifying relative.
• Did you file an F-2A petition for your children who are still in the Philippines? Since their visas will be processed in Manila, they would still need to file certain forms and documentation to preserve and protect their eligibility under the Child Status Protection Act (CSPA) while the priority date is current and before it retrogresses. If they don’t take appropriate and timely action, they could lose eligibility for CSPA benefits if the children should age out.
• Did the petitioner file a single petition for his spouse and all their minor children? Suppose one of the daughters got pregnant and gave birth. Your “grandchild” would not be included in that single F-2A petition. But there are ways in which your grandchild could be covered by a petition filed by you, as a grandparent.
• Was the beneficiary ever in removal\deportation, or did the beneficiary commit any crimes?
These are some of the issues or concerns that may come up in connection with eligibility to file for adjustment of status (or an application for immigrant visa in Manila). Because this priority date may not be current for too long, you may want to seek the advice and assistance of an attorney, who can evaluate your situation, and make sure it’s done properly and correctly, so that you don’t miss out on this opportunity (if you are qualified and eligible). And, if you’re not eligible, you can avoid an unnecessary filing and denial.
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Michael J. Gurfinkel is licensed, and an active member of the State Bar of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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