Permanent residents who file for their unmarried sons or daughters over the age of 21 are often dismayed and disappointed to learn-only after it is too late--that their petitions may be jeopardized by the marriage of their children. How and why does this happen? The problems lies in the way in which our immigration system is structured. As it currently stands, there are only four family based preference categories. For permanent residents, there are only two categories available for family members: F2A and F2B. When a green card holder files for a spouse or unmarried child under the age of 21, that relative will fall under F2A. If the lawful permanent resident files for an unmarried child 21 or older, the individual will be classified under F2B. Between the two categories, F2A is generally much quicker, as spouses and minor children are involved. F2B cases can drag for years. The problem is that there is no category for married children of lawful permanent residents. As a result, if the F2B beneficiary of an I-130 petition marries while the petition is pending (or for that matter, even after visa approval but before immigrating to the United States), the petition will, for all practical purposes, be invalidated. In other words, the individual will no longer be eligible for the visa as an unmarried child, since he or she is now married. It does not matter that the beneficiary married after the I-130 was filed; after the I-130 was approved; or even after the visa is granted. If the person is married before entrance into the United States, he or she technically does qualify for the visa.
This can be confusing to some because there are situations where adult children are able to immigrate even after marriage. However, in those cases, they are immigrating under the appropriate category, which is F3: married children of US Citizens. There are a number of ways in which an individual may fall into this category. One way is if the petitioner is already a US Citizen and files directly for an adult son or daughter who is already married. In some instances, a US Citizen may initially file for his son or daughter who is single (which is an F1 petition); after the adult child marries, the file is converted to F3. In other cases, a lawful permanent resident may have initially filed an F2B petition but subsequently become a United States Citizen; if the son or daughter marries after the petitioner has naturalized, the file remains intact: the preference category can be switched from F2B to F3 with the original priority date preserved. This is different than and to be distinguished from the first scenario where the beneficiary may have married before the petitioner's naturalization (if the petitioner naturalized at all).
All too often, unfortunately, parents of adult children who are beneficiaries of F2B petitions do not know this, and in some cases, encourage their children to get married without fully appreciating the legal consequences. Some of these situations can be avoided by careful planning and with an informed understanding of visa eligibility. For more information on how to file for a family member abroad, please contact our office. Please remember that the above is general information only and not intended to create an attorney-client relationship or be a substitute for legal advice.