(Part 1)
Dear Atty. Gurfinkel:
I am single and under petition. I have a common-law spouse, whom I would like to marry, but I am receiving conflicting advice and information about whether it’s OK to marry, and the effect that marriage would have on my petition.
When would marriage affect the validity of a person’s petition?
Very truly yours,
S.G.
Dear S.G.:
The following are some of the various petition categories and the effect marriage would have on them:
Immediate Relative (IR) (minor child [under 21 years of age] of US citizen):
If the immediate relative child (under 21) marries, it results in the automatic conversion (or reclassification) of the petition from IR to F-3 (married child of US citizen). When the petition is “converted”, the beneficiary keeps the original priority date (and is not required to have the petitioner file a new petition). The spouse could then be added to, or included under, the US citizen parent’s petition (no need to file a new petition for spouse). As a married child of a US citizen (F-3), however, she may wait ten or more years before her priority date becomes “current”, as opposed to an “immediate relative”, where a visa is immediately available. Remember, once you get married, even if you are still below 21 years old, you will no longer be considered a minor or immediate relative of a US citizen, unless you divorce before your 21st birthday.
Single Adult Child of US Citizen (F-1):
Marriage of a single adult child of a US citizen (F-1) results in the automatic conversion (or reclassification) of the petition from F-1 to F-3 (married child of US citizen). When the petition is “converted”, the beneficiary keeps the original priority date (and is not required to have the petitioner file a new petition). The person’s spouse is also added to, or included under, the F-3 petition.
Minor or Adult Child of Greencard-Holder Parent (F-2A and F-2B):
Marriage by a child being petitioned by an immigrant parent results in automatic revocation of the petition. A child under petition by a lawful permanent resident (LPR) parent should not marry at any time while the petitioner is still an LPR, up to the time child touches US soil (if processed for a visa at the Embassy), or adjusts status in the US (if child is in the US).
However, if the parent becomes a US citizen before the child marries, the petition would not be void. It would first convert from F-2A or F-2B (single child of an immigrant) to either Immediate Relative Child (if the child is under 21 years of age at the time of the parent’s naturalization), or F-1 (adult child of US citizen), and the original priority date is retained. Then, if the beneficiary marries (after the petitioner’s naturalization), the petition would once again convert to F-3 (married child of US citizen), and the original priority date is retained. But, if the child marries before their immigrant parent naturalizes, the petition is void. In that case, the parent’s subsequent naturalization would not save or revive the petition. The US citizen parent would need to file a new petition for the married child.
Married Child of US Citizen (F-3):
Of course marriage is permissible in the F-3 category, as that is the very reason the person is classified as a “married” child of a US citizen.
As you can see, there are certain situations where it is “bawal” (or prohibited) to get married, while in other cases, it could result in longer waits and/or may be to your advantage to get married. That is why if you have questions about whether or not it is “safe” to marry, I suggest that you seek the advice of a reputable attorney, who can evaluate your situation and advise you on whether or not it is best to get married before getting your green card. Don’t fool yourself by thinking “secret marriages” don’t count.
In a future article I will discuss more situations where marriage may (or may not) affect a person’s eligibility for a visa.
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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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