Family 2A Preference Shows Major Progression
Published: August 15, 2010

Each year, more than 100,000 immigrant visas are made available to foreign national spouses, and under 21 year old single children, of U.S. Lawful Permanent Residents (LPR). In recent years, it has taken anywhere from 3 to 5 years for an immigrant visa to become available in this family preference, although the underlying I-130 petition may get approved by a CIS Service Center in much less time. Earlier this month however, the U.S. Department of State released the Visa Bulletin for September, 2010, announcing that immigrant visas for the Family 2A Preference would be available to spouses and under 21 year old children of LPRs who were the beneficiaries of I-130 petitions filed prior to January 1, 2010 – with the exception of Family 2A Preference beneficiaries from Dominican Republic and Mexico – where a cut-off of January 1, 2009 applies.

The announcement was hugely significant since the timeline for immigrant visa processing for Family 2A beneficiaries was always viewed as involving a matter of years, not months – and with the need for the LPR to naturalize and become a U.S. citizen to meaningfully cut down on processing time. (Spouses and under 21 year old children of U.S. citizens do not face the same per-country limitations as Family Preference beneficiaries, and usually only wait a period of 6 months or so to receive their immigrant visa or permanent resident status).

Practical consequence: If there was ever any question whether an LPR should immediately file an I-130 petition for their overseas spouse or young child – as opposed to waiting to become a U.S. citizen, there is not anymore. In almost all cases the answer is: File the Petition Now. For a variety of technical reasons, the LPR should also be sure to file a separate I-130 for their spouse and each child in the event the LPR becomes a U.S. citizen before the beneficiaries emigrate. That is because of the law that requires U.S. citizens, unlike LPRs, to have on file separate I-130 petitions for each beneficiary to facilitate their immigrant visa processing. Although the scenario can change at any time, with visa number stagnation or even retrogression always possible, it looks like an LPR may now be able to facilitate immigrant visa issuance for his overseas spouse and young children in 18 months or less.

Please note, LPRs should not hesitate to become a U.S. citizen as soon as they become eligible, since there will only be an upside to such a development for an overseas spouse or under 21 year old child, prompting even faster immigrant visa processing.

For Family 2A beneficiaries in the U.S.: For an LPRs spouse and under 21 year old children living in the U.S., the benefits of filing an I-130 petition prior to the LPR becoming a U.S. citizen vary on the situation. If the family beneficiaries are in lawful nonimmigrant status, or are grandfathered in under Section 245(i), then the answer is: Yes, file the petition immediately, since the family will be eligible to file for adjustment of status and commence and undergo all processing in the U.S. immediately upon visa availability.

On the other hand, spouses and young children of LPRs who are out of status and not
245(i) eligible, generally do not stand to benefit in any meaningful way if their petitioning spouse/parent files an I-130 petition on their behalf prior to becoming a U.S. citizen. That is because such out of status family members only become eligible to commence adjustment of status processing (which includes eligibility to receive employment authorization) after their petitioning spouse or parent becomes a U.S. citizen. Of course, it never hurts for such family members to be in possession of a piece of paper confirming that they are the beneficiary of an I-130 petition, but substantively, these family members will only have access to a real immigrant benefit only after their LPR spouse or parent becomes a U.S. citizen.

No matter the circumstances, careful planning and practical strategies are key to making the right decisions in the complex world of family-based immigration law.

Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois