The correct answers to the Family-Based Immigration IQ test are as follows:
- Immediate Relative A U.S. citizen’s unmarried, minor child is considered to be an immediate relative. The child does not need a visa number, and is eligible to receive an immigrant visa immediately. If a U.S. citizen father submits an I-130 petition on behalf of his child before his 21st birthday, the child can immigrate even if he is over the age of 21 at the time of the interview. Under Section 2 of the Child Status Protection Act (CSPA), the date of filing of the petition by the father “freezes” the child’s age, and it does not matter how long it takes for the child to use that petition to acquire permanent residence. Unless the child marries, he will always be able to immigrate as an immediate relative.
- 3rd Preference A person is no longer considered to be a “child” or an “immigrate relative” of a U.S. citizen parent once he gets married even if the marriage occur before his 21s birthday. Married children of U.S. citizens may, however, immigrate under the 3rd preference category. How long it will take for such persons to immigrate to the U.S. can be obtained by referring to the State Department’s monthly Visa Bulletin.
- He is at least 21 years of age A U.S. Citizen must be at least 21 years of age in order to submit an immigrant visa petition (Form I-130) on behalf of his parents or siblings. However a person, whether a U.S. citizen of a lawful permanent resident, not need be 21 years of age in order to sponsor his or her spouse and children.
- 3rd Preference Although the I-130 petition was filed by an LPR father for his minor child, since then, the immigration status of the father, the age of the son and the son’s marital status have changed. With these changes in circumstances, the son’s preference category changes three times. When the son turned 21 in 2001, his preference category changed from 2A (unmarried child of lawful permanent resident) to 2B (unmarried adult son or daugher of an LPR). Then when the petitioning father became a U.S. citizen in 2002 before his son got married, the son’s category changed again, this time to the 1st preference (unmarried adult son or daughter of a U.S. citizen), and then to the 3rd preference category (married son or daughter of a U.S. citizen) when the son got married. Here timing is everything. If, for example, the son had married prior to the date that his father naturalized, his priority date would have been lost since an LPR parent cannot sponsor his married sons and daughters.
- 1999 The son’s priority date would continue to 1999, the date that his father submitted of an I-130 visa petition on his behalf. Irrespective of the subsequent changes in preference categories, the priority date is locked in on the date of filing of the first petition.
- England If a U.S. citizen sponsors his foreign-born brother under 4th preference category, then the brother’s family consisting of his spouse and his children can also immigrate at the same time provided that he was married and his children were born prior to the time that he becomes a permanent resident. The wait time in the 4th preference category for a person born in the Philippines exceeds 22 years. However, since his wife was born in another country, section 202(b)(2) of the Immigration and Nationality Act permits them to use the quota of the spouse’s country of birth if this would be faster. This is called “alternate chargeability”. The waiting time for 4th preference petitions for persons born in England is “only” 10 years. Since the brother’s petition was submitted in 1990, the priority date is “current” and the family can immediately immigrate to the United States. The country of birth of the child is irrelevant in this case.
- Spouses and Unmarried Sons and Daughters A green card holder has lesser rights to sponsor his relatives than can a U.S. Citizen. A green card holder can only sponsor his spouse, child and unmarried sons and daughter under the 2A and 2B preference categories.
- Uncles and Aunts A U.S. citizen may sponsor his parents, spouse, sons and daughers and brothers and sisters. However, no matter how a close the relationship between a U.S. citizen and his uncles and aunts, he cannot sponsor them for green cards. However, he can sponsor his parents and once they become a U.S. citizens, they can sponsor their siblings (his aunts and uncles) under the 4th preference category. One must have a lot of patience to pursue this course of action the waiting times are extremely long.
- All of the above Normally, when the petitioner dies, so does the petition. However, under Section 213 (A) (f) (5) of the Immigration and Nationality Act, if the U.S. petitioner dies after the approval of the I-130 petition but before the priority date becomes current, USCIS may exercise discretion for “humanitarian reasons” and not revoke the petition. In a such a case, a new affidavit of support may be provided by the spouse, parent, mother-in-law, father-in-law, sibling, child (over 18 yrs), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild or legal guardian of the beneficiary.
- Only the youngest two children A U.S. citizen or LPR may petition for his step-children. Under the law, step-children must be under 18 years of age on the date that the marriage that the marriage occurs. Therefore, the 17 year old and the 15 year old children qualify as step-children, but the 19 year old does not.
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.