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Apr 28, 2006
U.S. Citizens must File Separate Petitions for each “Immediate Relative”
- Atty. Michael J. Gurfinkel Email this article

Dear Atty. Gurfinkel:

 

While I was still an immigrant, I filed a petition for my spouse and minor children in the F-2A category (spouse and/or minor children of green card holder).  My understanding is that all of my family members were covered by that single petition.

 

I later took the oath of citizenship, and am being told that my petition for my family now covers only my spouse and not my children.  So, I need to file new, separate petitions for each of my kids.  Since all my family members were previously covered under my F-2A petition, why do I need to now file separate petitions for my kids?

 

Very truly yours,

L.D.

 

Dear L.D.:

 

By law, a green card holder need only file one F-2A petition to cover several family members, such as a spouse (who is the “principal” beneficiary) and all minor children (who are “derivative” beneficiaries).  However, when the green card holder naturalizes, the F-2A petition automatically converts from F-2A (spouse/minor child of green card holder) to immediate relative (spouse/parent/child of U.S. citizen).  That conversion changes the classification of the spouse and children to the status of “immediate relatives”.  According to the Foreign Affairs Manual, the Immigration and Nationality Act “does not generally accord derivative status for family members of immediate relatives as it does for preference applicants . . . A U.S. citizen must file separate immediate relative petitions for the spouse, each child, and each parent.”  In other words, petitions by U.S. citizens of immediate relatives (spouse, minor child, parents) allow only one beneficiary per petition.  Derivatives are not allowed.

 

In your case, when you became a U.S. citizen, only your spouse (as the principal beneficiary) remained under your original petition, since only one immediate relative can be covered by a petition by a U.S. citizen.  Your children, as F-2A derivative beneficiaries, “dropped off” that petition.  Therefore, you must now file new petitions, one for each of your children, so that they, too, will again be “under petition”.

 

I know of one case where an immigrant had petitioned his wife and three kids, under one petition.  The priority date in the F-2A category (green card holder petitioning spouse and minor children) was already current, and the family was already in the middle of immigrant visa processing at the U.S. Embassy, when the petitioner took the oath of citizenship.  When the family went to the interview, only the wife was entitled to the visa.  Because the petitioner became a citizen, he had to go back and file new immediate relative petitions for each of his three kids.

 

Although a single petition by a green card holder can cover several family members, if the immigrant wants to file for naturalization, the immigrant may wish to, at the outset, file separate petitions for each of his immediate relatives, so as to avoid the situation of naturalizing and then having some family members no longer being “under petition”.

 

Please note that the above situation (where each family member must have his own separate petition) applies only to immediate relatives of U.S. citizens (spouse, minor child, and/or parent).  This rule does not apply to petitions by U.S. citizens for unmarried son or daughter (first preference), married son or daughter (third preference), or brother or sister (fourth preference).  These petitions would also cover or include derivatives (minor children and/or spouses where applicable).

 

******

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. 

 

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