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,
The following are some of the various petition categories and the effect marriage would have on them:
1. Immediate Relative (IR) (minor child [under 21 years of age] of U.S. 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 U.S. 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 U.S. citizen parent’s petition (no need to file a new petition for spouse). As a married child of a U.S. 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 U.S. citizen.
2. Single Adult Child of U.S. Citizen (F-1):
Marriage of a single adult child of a U.S. citizen (F-1) results in the automatic conversion (or reclassification) of the petition from F-1 to F-3 (married child of U.S. 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 is also added to, or included under, the F-3 petition.
At the present time, there is only a few months difference in waiting time between single adult children of U.S. citizens (F-1) and married children of U.S. citizens (F-3). Therefore, if a child was petitioned in the F-1 category, but the F-3 priority date is already current, they should evaluate and consider whether or not to get married. The marriage would automatically convert the petition from F-1 to F-3. The spouse would then be included in the petition. Since the priority date for F-3 would be current, it would not affect the person’s waiting time. Also, the spouse could be added on, or included under, the original petition, rather than being left behind and then be petitioned as the spouse of an immigrant (F-2A), with a waiting time of five or more years.
3. Minor or Adult Child of Greencard-Holder Parent (F-2A and F-2B):
Marriage by the child being petitioned (by an immigrant parent) results in automatic revocation of the petition. A child under petition by a legal permanent resident (LPR) parent should not marry at any time while the petitioner is still an LPR, up to the time child touches U.S. soil (if processed for a visa at the Embassy), or adjusts status in the U.S (if child is in the U.S.).
However, if the immigrant’s parent becomes a U.S. citizen before the child marries, the petition would not be void. It would first convert from F-2A or F-2B (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 U.S. citizen). Then, if the beneficiary marries (after the petitioner’s naturalization), the petition would once again convert to F-3 (married child of U.S. citizen). 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 U.S. citizen parent would need to file a new petition for the married child.