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Apr 17, 2006
An “Approved” Relative Petition does not Give Immediate Legal and/or Working Status
- Atty. Michael Gurfinkel Email this article

Many people think that an approved relative petition means they are immediately in legal status, enabling them to stay, live, and work in the U.S.  For example, soon after the petition is filed, the person receives a notice from the USCIS stating, “The above petition has been approved.”  The family gets excited, thinking that if the family member is in the Philippines, he or she will soon be able to join them.  Or, if the petitioned family member is already in the U.S., he or she can begin working immediately. After all, they have an approved petition. Right?

 

By law, only the spouse, minor child, or parents of a U.S. citizen (“immediate relative”) are “immediately” eligible for their green cards.  For all other family petitions, there is a backlog or waiting period for green cards:

1.      F-1 - single adult child of citizen

2.      F-2A - spouse and/or minor child of green card holder

3.      F-2B - single, adult child of green card holder

4.      F-3 - married child of citizen

5.      F-4 - brother/sister of citizen.

 

This waiting period can be anywhere from 4 to 30 years, depending on:

1.      the status of the petitioner (immigrant or U.S. citizen),

2.      the age (under or over 21),

3.      marital status (married/unmarried) of the person being petitioned, and

4.      the relationship of the family member to the petitioner (husband/wife, parent/child, brother/sister).

 

Just because a person has an approved petition, does not mean that they are in immediate legal and/or working status. In fact, on the back of the Approval Notice, it specifically states:

 

“The filing of an application or petition does not in itself allow a person to enter the United States and does not confer any other right or benefit.

 

Approval of an immigrant petition does not convey any right or status.  The approved petition simply establishes a basis upon which the person you filed for can apply for an immigrant or fiancé (e) visa or for adjustment of status.

 

A person is not guaranteed issuance of a visa or a grant of adjustment simply because this petition is approved.  Those processes look at additional criteria.” (Emphasis added)

 

As you can see, except for “immediate relatives”, the approval of a family petition does not confer any immediate rights or benefits to the person being petitioned.  The family member must still wait several more years until their priority date is current (or the visa is available), before they are able to legally enter, live, and work in the United States.  Until their visa is available (or priority date is current), they would be without legal status and, technically, deportable/removable if caught (unless they have some other type of authorization or visa to live and/or work in the U.S.).

 

If you or a family member are under a family petition and are impatient with the long waiting time involved for the visa to become available, you may wish to consider other ways for the family member to be petitioned, such as through employer sponsorship (called Labor Certification/PERM ). Remember, if a person has already been petitioned by a relative, they can still be petitioned for a green card through as many different ways as are legitimately available to them, all at the same time. (In addition, under Section 245(i), if a petition was filed for you before April 30, 2001, it is possible for you to be interviewed in the U.S. for a green card even under a new Labor Certification/PERM application filed by an employer after April 30, 2001.) You should see a reputable attorney, who can advise you and your family of possible faster ways for the relative to immigrate to the U.S.

 

 

*****

Michael  J. Gurfinkel has been an attorney for over 25 years, and is an active member of the State Bar of California and New York, as well as the American Immigration Lawyers Association and the Immigration Section of the Los Angeles County Bar Association.  He has always excelled in school:  Valedictorian in High School; Cum Laude at UCLA; and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California. 

 

WEBSITE:                www.gurfinkel.com

 

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                             Telephone: (818) 543-5800 

 

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(This is for informational purposes only, and reflects the firm's opinions and views on general issues.  Each case is different and results may depend on the facts of a particular case. All immigration services are provided by an active member of the State Bar of California and/or by a person under the supervision of an active member of the State Bar.  No prediction, warranty or guarantee can be made about the results of any case.  Should you need or want legal advice, you should consult with and retain counsel of your own choice.)

 


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My son 16 years now, he does not live here in the - Camy
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