Conditional green card holders can petition family members while a conditional resident

Dear Attorney Gurfinkel:

I married a US citizen after my child’s 18th birthday and am now a conditional resident. I know my husband and I need to file a joint petition to remove conditions within 90 days of the expiration of my two-year conditional green card.

I had hoped my husband could petition my child as a stepchild, but since we married after my child’s 18th birthday, that is not possible. Do I need to wait until the conditions are removed on my green card before I can petition my child, or can I already petition him now, and hopefully his visa will be available before his 21st birthday?

Very truly yours,

GS

Dear GS:

The law allows you to file a petition for your child now, while you’re still a conditional resident. 8 CFR 216.1 provides in relevant part:

“Unless otherwise specified, the rights, privileges, responsibilities and duties which apply to all other lawful permanent residents apply equally to conditional permanent residents, including but not limited to the right to apply for naturalization (if otherwise eligible), the right to file petitions on behalf of qualifying relatives, the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed; . . .”

In your case, you could, therefore, petition your single minor child in the F – 2A category. At present, the backlog for such petitions is approximately 1-1/2 years. Hopefully, if you act immediately, your child may still qualify as a “minor” child because the priority date could become current before his 21st birthday and/or he could possibly be eligible for benefits under the Child Status Protection Act (CSPA).

If you wait to file your child’s F-2A petition until after your conditions are removed and you’re given a 10-year green card, there may not be enough time to process your child’s petition (and the priority date to become current)  before his 21st birthday.  He would then be automatically reclassified into the F-2B category, where the waiting time could be an additional 10-12 years.

If you are a conditional resident and are considering petitioning certain family members, such as unmarried children, whether under or over the age of 21, you should seek the advice of an attorney, who can evaluate your situation. Naturally, your marriage to the US citizen (through whom you received conditional status) must be bona fide and for love. If USCIS concludes you entered into a fixed marriage, not only would your status be in jeopardy, but also any petition you filed.

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