Naturalized while pending for interview to be scheduled at the Embassy

[KevNat 1]

Hi, 

 

I just recently naturalized while we are waiting for an interview date to be scheduled on my wife and daughter F2A with Derivative visa. Is it mandatory to upgrade the status to IR or I can keep it as F2A with Derivative? because If I upgrade to IR, then I would have to submit a new separate I-130 petition for my daughter and may take longer, right? 

 

My attorney keep asking for a copy of my naturalization to make change in the immigration but I keep telling them that we don't want to upgrade the status.

 

Please advise for best action to take...

 

Thank you in advance

[SusieQQQ 11,586]

Unfortunately, you do not have the option to retain F2A after you naturalize and this does mean a separate i130 needs to be filed. The hindsight advice would have been to wait to naturalize.  The conversion is automatic.
 

From the DoS manual:

 

https://fam.state.gov/fam/09FAM/09FAM050202.html

9 FAM 502.2-3(C)

(C) 2. Likewise, if the petitioner intends to become a U.S. citizen before his or her spouse and children have immigrated to the United States, the petitioner should file separate immigrant visa petitions for any children who are currently deriving their immigration status through the spouse.  That way, when the petitioner is naturalized, the petition according second preference status (F21) to the spouse, as well as those petitions according second preference status (F22) to any children, will be converted automatically to accord the beneficiaries immediate relative status (IR1 or IR2).  If, however, the petitioner does not file separate petitions for his or her children before naturalization, the children will lose their derivative status upon the petitioner's naturalization, since the spouse's status will automatically convert to IR1 and there is no derivative status for immediate relatives.  The petitioner will then have to file new petitions on their behalf to accord them IR2 status

 

Edited October 22, 2020 by SusieQQQ

[Liam2021 583]

File a new I-130 for your daughter ASAP and request an expedite with USCIS. The change is slim, but that is the only option.

[KevNat 1]

Thank you for the advices! 

 

Do ya'll have recommended attorney based in Houston? 

[KevNat 1]

1 hour ago, SusieQQQ said:

Unfortunately, you do not have the option to retain F2A after you naturalize and this does mean a separate i130 needs to be filed. The hindsight advice would have been to wait to naturalize. 
 

From the DoS manual:

 

https://fam.state.gov/fam/09FAM/09FAM050202.html

9 FAM 502.2-3(C)

2. Likewise, if the petitioner intends to become a U.S. citizen before his or her spouse and children have immigrated to the United States, the petitioner should file separate immigrant visa petitions for any children who are currently deriving their immigration status through the spouse.  That way, when the petitioner is naturalized, the petition according second preference status (F21) to the spouse, as well as those petitions according second preference status (F22) to any children, will be converted automatically to accord the beneficiaries immediate relative status (IR1 or IR2).  If, however, the petitioner does not file separate petitions for his or her children before naturalization, the children will lose their derivative status upon the petitioner's naturalization, since the spouse's status will automatically convert to IR1 and there is no derivative status for immediate relatives.  The petitioner will then have to file new petitions on their behalf to accord them IR2 status

Do you know if all I need to do is to file a new I-130 for my child? or have to go through the process all over again with the DS-260 and submitting documentation to NVC again? 

[milimelo 4,481]

19 minutes ago, KevNat said:

Do you know if all I need to do is to file a new I-130 for my child? or have to go through the process all over again with the DS-260 and submitting documentation to NVC again? 

Full process - I-130, NVC, medical and interview. 
Should’ve researched this before taking the oath. 

[SusieQQQ 11,586]

@KevNat- hopefully you get alerts /still checking - FYI it seems you can recapture the priority date of the original F2A petition even though you need to file a new IR2 petition (see extract from lawyer’s website below).  So hopefully it won’t be too much of a extra delay even though it is definitely an extra hassle/cost.  The upside is that your child under 18 will automatically become a US citizen under INA320 when she enters the US on her green card to live with you.
 

When a permanent resident petitioner becomes a naturalized U.S. citizen, he may request an upgrade of his I-130 petition for his spouse from the F2A to Immediate Relatives category. But if he did not file an I-130 petition for his minor child (under age 21), and simply listed him as an F2A derivative beneficiary on the I-130 petition for his spouse, he will need to file a new I-130 petition for the child in the Immediate Relatives category. The old priority date may be recaptured to help the child immigrate earlier with the spouse. 
https://dyanwilliamslaw.com/2017/10/priority-date-recapture-and-retention-in-family-based-immigration/

Edited October 28, 2020 by SusieQQQ

[KevNat 1]

1 hour ago, SusieQQQ said:

@KevNat- hopefully you get alerts /still checking - FYI it seems you can recapture the priority date of the original F2A petition even though you need to file a new IR2 petition (see extract from lawyer’s website below).  So hopefully it won’t be too much of a extra delay even though it is definitely an extra hassle/cost.  The upside is that your child under 18 will automatically become a US citizen under INA320 when she enters the US on her green card to live with you.
 

When a permanent resident petitioner becomes a naturalized U.S. citizen, he may request an upgrade of his I-130 petition for his spouse from the F2A to Immediate Relatives category. But if he did not file an I-130 petition for his minor child (under age 21), and simply listed him as an F2A derivative beneficiary on the I-130 petition for his spouse, he will need to file a new I-130 petition for the child in the Immediate Relatives category. The old priority date may be recaptured to help the child immigrate earlier with the spouse. 
https://dyanwilliamslaw.com/2017/10/priority-date-recapture-and-retention-in-family-based-immigration/

Thank you for this information. I already filed additional I-130 for my daughter as well. I think I need to give USCIS or NVC a call to make sure that they are aware of the situation

[KevNat 1]

On 10/28/2020 at 4:32 PM, SusieQQQ said:

@KevNat- hopefully you get alerts /still checking - FYI it seems you can recapture the priority date of the original F2A petition even though you need to file a new IR2 petition (see extract from lawyer’s website below).  So hopefully it won’t be too much of a extra delay even though it is definitely an extra hassle/cost.  The upside is that your child under 18 will automatically become a US citizen under INA320 when she enters the US on her green card to live with you.
 

When a permanent resident petitioner becomes a naturalized U.S. citizen, he may request an upgrade of his I-130 petition for his spouse from the F2A to Immediate Relatives category. But if he did not file an I-130 petition for his minor child (under age 21), and simply listed him as an F2A derivative beneficiary on the I-130 petition for his spouse, he will need to file a new I-130 petition for the child in the Immediate Relatives category. The old priority date may be recaptured to help the child immigrate earlier with the spouse. 
https://dyanwilliamslaw.com/2017/10/priority-date-recapture-and-retention-in-family-based-immigration/

I saw this article online I am not sure how accurate this is...

"Fortunately, the law takes care of you in this situation. Any child born to your relative before your relative is admitted to the U.S. can get a visa along with the rest of the family, without another I-130 and without any extra wait. When it’s time for the family to apply for their visas at the U.S. embassy or consulate, your relative can apply on behalf of the child, showing proof of the birth and the I-130 approval from USCIS."

 

https://www.nolo.com/legal-encyclopedia/your-relative-had-children-after-i-130-approved-can-they-immigrate-too.html#:~:text=In%20most%20cases%2C%20children%20who,along%20with%20other%20derivative%20children.&text=After%20the%20I%2D130%20is,time%20if%20they%20want%20to.

 

Edited November 3, 2020 by KevNat

[SusieQQQ 11,586]

29 minutes ago, KevNat said:

I saw this article online I am not sure how accurate this is...

"Fortunately, the law takes care of you in this situation. Any child born to your relative before your relative is admitted to the U.S. can get a visa along with the rest of the family, without another I-130 and without any extra wait. When it’s time for the family to apply for their visas at the U.S. embassy or consulate, your relative can apply on behalf of the child, showing proof of the birth and the I-130 approval from USCIS."

 

https://www.nolo.com/legal-encyclopedia/your-relative-had-children-after-i-130-approved-can-they-immigrate-too.html#:~:text=In%20most%20cases%2C%20children%20who,along%20with%20other%20derivative%20children.&text=After%20the%20I%2D130%20is,time%20if%20they%20want%20to.

 

It is accurate, it is referring to a new child born between the parent getting an immigrant visa and actually immigrating. This is not your situation, is it?

[KevNat 1]

3 minutes ago, SusieQQQ said:

It is accurate, it is referring to a new child born between the parent getting an immigrant visa and actually immigrating. This is not your situation, is it?

It is actually. My child born after my wife I-130 got approved. We added our daughter as a derivative and now the case became CR1 and DQed pending for an interview at the embassy but my daughter got taken out of it. I already filed a I-130 for my daughter now just pending for an approval. 

 

I have been trying to find out if my wife can go to the interview and bring my daughter with her approved I-130 letter? Please advise...

 

 

[aaron2020 11,651]

42 minutes ago, KevNat said:

I saw this article online I am not sure how accurate this is...

"Fortunately, the law takes care of you in this situation. Any child born to your relative before your relative is admitted to the U.S. can get a visa along with the rest of the family, without another I-130 and without any extra wait. When it’s time for the family to apply for their visas at the U.S. embassy or consulate, your relative can apply on behalf of the child, showing proof of the birth and the I-130 approval from USCIS."

 

https://www.nolo.com/legal-encyclopedia/your-relative-had-children-after-i-130-approved-can-they-immigrate-too.html#:~:text=In%20most%20cases%2C%20children%20who,along%20with%20other%20derivative%20children.&text=After%20the%20I%2D130%20is,time%20if%20they%20want%20to.

 

This is for cases where derivative children are allowed.  F2a for example.

 

Your case is no longer an F2a.  Your case is now an CR-1/IR-1 where derivative beneficiaries are not allowed.  This does not apply to you.  

[KevNat 1]

1 minute ago, aaron2020 said:

This is for cases where derivative children are allowed.  F2a for example.

 

Your case is no longer an F2a.  Your case is now an CR-1/IR-1 where derivative beneficiaries are not allowed.  This does not apply to you.  

But when I added my daughter as a derivative I had to apply and paid for DS-260 at NVC. This article says that I could do it at the Embassy or Consulate? Just need to bring Birth Cert and Approved I-130? 

[SusieQQQ 11,586]

11 minutes ago, KevNat said:

It is actually. My child born after my wife I-130 got approved. We added our daughter as a derivative and now the case became CR1 and DQed pending for an interview at the embassy but my daughter got taken out of it. I already filed a I-130 for my daughter now just pending for an approval. 

 

I have been trying to find out if my wife can go to the interview and bring my daughter with her approved I-130 letter? Please advise...

 

 

Ah, my mistake, I thought you were pointing to a different section of law (the one I referred to in my answer - child born after visa is actually issued).

No, this doesn’t apply in your case as Aaron2020 has pointed out, and in fact if you keep reading the article you linked it says so too:

Your naturalization: If you’re a green card holder petitioning to bring the child’s parent (your spouse) to the U.S., you might decide to get your U.S. citizenship after the I-130 was approved. This would change your spouse and the child into your “immediate relatives.” You wouldn’t have to file a new I-130 petition for your spouse, but you would have to file a new I-130 petition for each child. (See How Spouses and Minor, Unmarried Children of Permanent Residents Can Change Visa Category.) Although it might take a few months for the child’s I-130 to be approved, “immediate relatives” don’t have to wait in line to get their visas, so getting your citizenship should speed up the immigration process.

 

 

 

 

 

 

Edited November 3, 2020 by SusieQQQ

[KevNat 1]

6 minutes ago, SusieQQQ said:

Ah, I thought you were pointing to a different section of law (the one I referred to in my answer - child born after visa is actually issued).

No, this doesn’t apply in your case as Aaron2020 has pointed out, and in fact if you keep reading the article you linked it says so too:

Your naturalization: If you’re a green card holder petitioning to bring the child’s parent (your spouse) to the U.S., you might decide to get your U.S. citizenship after the I-130 was approved. This would change your spouse and the child into your “immediate relatives.” You wouldn’t have to file a new I-130 petition for your spouse, but you would have to file a new I-130 petition for each child. (See How Spouses and Minor, Unmarried Children of Permanent Residents Can Change Visa Category.) Although it might take a few months for the child’s I-130 to be approved, “immediate relatives” don’t have to wait in line to get their visas, so getting your citizenship should speed up the immigration process.

 

 

 

Thank you for pointing that out. Do you know if there is a way to request USCIS to expedite I-130?