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Opinion

No petition required!

IMMIGRATION CORNER - Michael J. Gurfinkel - The Philippine Star

Did you know it is possible to bring certain family members to the US without having to file a petition? It is through a process or procedure called “following to join.”

The reason I’m writing this article is because of a consultation I recently had. The person was asking how to bring her children to the US faster. In her case, she was living in the Philippines and was petitioned by an employer through PERM, or labor certification. When her priority date became current, she decided that she would only apply for a visa and go to the US alone. She decided she wanted to go first and get settled in her new job, and later would deal with bringing her children to the US. Also, her children were still in school and she thought it best to let them finish. So, she left her children in the care of a grandparent or aunt in the Philippines.

Years later, she decided it was time to bring her children to the US and filed a petition for them in the F-2A category, which is a petition by a green card (Lawful Permanent Resident or LPR) parent for single children under 21 years of age. But it was taking so long and she was consulting on ways to speed up the process.

So you know, US Citizenship and Immigration Services (USCIS) is taking over two years just to process and approve the petition. After that, the case still has to go to the National Visa Center (NVC) for further processing and eventual scheduling of an immigrant visa interview. But we all know about the backlogs at embassies and how hard it is to get an interview, especially because of the situation caused by the COVID-19 pandemic and reduced staffing.

I advised her that many petitions already include children and spouses. In fact, I have posted videos on my YouTube channel, US Immigration TV, about which family members are included in petitions, such as employment-based petitions and most family petitions (except for immediate relatives of US citizens). In other words, there was no need for her to file a new or separate petition on behalf of her children, as her employer’s petition would have enabled them to be processed and scheduled for an interview under the employer’s petition. This is called “following to join” and it applies to both employment and family-based petitions.

Technically, there is no time limit when a child (or a spouse) must follow to join the principal beneficiary, as long as the principal beneficiary remains an immigrant and they maintain the relationship of spouse or child. For example:

• If a married couple terminates their marriage before the other spouse immigrates, they could not follow to join, as they are no longer considered a spouse.

• If the principal beneficiary naturalizes, then the family members can no longer follow to join under the petition. In that case, new petitions would have to be filed.

• If the child ages out, they may also not be eligible to follow to join, unless they qualify under the Child Status Protection Act (CSPA). But it can get very tricky and confusing, because to preserve a child’s eligibility under the CSPA, the child would still be required to “seek to acquire” a visa within one year of when the priority date became current, even if they plan to follow to join years later. It sounds contradictory that the child is not planning to pursue their visa for years, yet they are still required to notify the NVC within one year of visa availability.

But the point is, no new petition is required to be filed in order to bring certain family members to the US if they qualify as following to join beneficiaries. Even if the principal beneficiary adjusts status in the US and their family members are back home in the Philippines or another country, they are still eligible to immigrate under the original petition, and the principal beneficiary does not have to file a new or separate one.

If you, or someone you know, could benefit from this process, I would recommend that you consult with an attorney right away to evaluate your situation and help process your family members. The reason I say do so right away is that there could be some deadlines for children to protect their eligibility under the CSPA. And, in many cases, following to join is faster than a new petition, especially if USCIS is taking over two years to approve petitions.

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WEBSITE: www.gurfinkel.com

Follow us on Facebook.com/GurfinkelLaw, YouTube: US Immigration TV and Instagram.com/gurfinkellaw

Four offices to serve you: Los Angeles; San Francisco; New York: Toll free number: 1-866-GURFINKEL (1-866-487-3465); Philippines: +632 88940258 or +632 88940239

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