Subject: Inquiry Regarding Stepdaughter’s Eligibility for Priority Date Transfer

[david-chicago 0]

Hi guys,

I am guided by one Reddit platform friend to here to ask a question about my stepchild's US immigration application. 

 

I am a U.S. citizen, filed an immigrant visa petition (Form I-130) for my wife, on June 23, 2022 (I Was A Lawful Permanent Resident) . At the time of filing, my stepdaughter, was included in my wife's application and was under the age of 21. I filled all the information about this stepchild in my wife's application, not a separated I 130. I only paid one fee for my wife. 

 

I was naturalized as US citizen on March 6, 2023 AND this case was in pending. 

 

The case history as below:

• - We received your Form I-130, Petition for Alien Relative, and sent you a receipt notice on June 23, 2022.
• - We are actively reviewing your Form I-130, Petition for Alien Relative. Our records showed nothing is outstanding at this time on December 15, 2023.
• - Your case for your Form I-130, Petition for Alien Relative was approved on December 19, 2023.
• - Case Was Sent To The Department of State on December 22, 2023.
•  

However, recent correspondence from the National Visa Center (NVC) indicates that only my wife’s case has progressed to the interview stage, without any mention of my stepdaughter’s application status. I wrote a letter to the NVC and they replied below.

 

In response to this, the NVC provided the following information:

• "The Principal Applicant or Beneficiary is the person who intends to immigrate to the United States. The Petitioner is the U.S. permanent resident or U.S. citizen who filed an immigrant visa petition for the principal applicant.
• The Immigration and Nationality Act (INA) does not allow derivative status to family members of immediate relatives. IR1, CR1, CR2, IR2, and IR5 classifications are immediate relative visa categories. This means that a spouse, unmarried child under the age of 21 and a parent of a U.S. citizen require their own individual petition in order to immigrate to the U.S.
• For information about how to submit a new visa petition for an immediate relative, please contact the Department of Homeland Security's office of U.S. Citizenship and Immigration services (USCIS)."
• Based on this information, I kindly request clarification on whether my step-daughter can utilize the priority date associated with my wife's petition for her own immigrant visa application.

 

she is currently over the age of 21 but is a full-time student in the USA.

 

please give any suggestions, thank you guys.

[Dashinka 24,493]

Were you married to the mother before your step-daughter turned 18?

[mam521 2,062]

When you naturalized, your wife's category changed from FP to IR.  IR petitions are not allowed to have derivatives like FP petitions (yes, it seems rather silly that FP's can but that's a whole other discussion).  You should have filed an I-130 for your stepdaughter and requested an expedite on the grounds of her being a derivative on your wife's petition, but a category change resulted in the requirement for the new I-130 application when you naturalized.  

 

Can you confirm the answer to @Dashinka's question? 

[pushbrk 12,882]

3 hours ago, Dashinka said:

Were you married to the mother before your step-daughter turned 18?

Critical question.

[david-chicago 0]

6 hours ago, Dashinka said:

Were you married to the mother before your step-daughter turned 18?

no, she was 17 years old

 

[david-chicago 0]

5 hours ago, mam521 said:

When you naturalized, your wife's category changed from FP to IR.  IR petitions are not allowed to have derivatives like FP petitions (yes, it seems rather silly that FP's can but that's a whole other discussion).  You should have filed an I-130 for your stepdaughter and requested an expedite on the grounds of her being a derivative on your wife's petition, but a category change resulted in the requirement for the new I-130 application when you naturalized.  

 

Can you confirm the answer to @Dashinka's question? 

Thank you so much for your advice it really helps. I will fill new I -130 for her this week. 

3 hours ago, pushbrk said:

Critical question.

Yes, she was 17 years old. 

[Family 3,988]

Since F-1 visa cat for adult daughter of USC will take a decade or so , best case scenario. …encourage her to laser focus on her education with eyes on employment visa …H-1B or fields in the NIW realm . 
Unfortunate misstep in your naturalizing , as it means no priority date retention nor age out protections . 
 

Family- Sponsored	All Chargeability  Areas Except Those Listed	CHINA-mainland  born	INDIA	MEXICO	PHILIPPINES
F1	08FEB15	08FEB15	08FEB15	01MAY01	01MAR12
F2A	08SEP20	08SEP20	08SEP20	15AUG20	08SEP20
F2B	22NOV15	22NOV15	22NOV15	22OCT03	22OCT11
F3	01OCT09	01OCT09	01OCT09	08SEP98	08JUN02
F4	08JUN07	08JUN07	15DEC05	15OCT00	15JUN03

https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2024/visa-bulletin-for-april-2024.html

 

[pushbrk 12,882]

It seems you would have had the option to proceed with the original, if you did not notify NVC to upgrade the petition.  Maybe the Naturalization occurred BEFORE the petition was approved??

 

[david-chicago 0]

1 hour ago, pushbrk said:

It seems you would have had the option to proceed with the original, if you did not notify NVC to upgrade the petition.  Maybe the Naturalization occurred BEFORE the petition was approved??

 

Yes, I made the I 130 application June 2022 and naturalized on March 2023 while the case still was in pending. I thought if I upload my citizenship certificate it may accelerate my application ( it was). However when the case proceed to the NVC I found my stepdaughter was excluded.   

[Family 3,988]

1 hour ago, pushbrk said:

It seems you would have had the option to proceed with the original, if you did not notify NVC to upgrade the petition.  Maybe the Naturalization occurred BEFORE the petition was approved??

 

Not in this scenario. ..only if there had been a separate petition for the child. ..and would only be relevant if OP natz after child turned 21. 
 

 

Edited April 3 by Family

[david-chicago 0]

3 minutes ago, Family said:

Not in this scenario. ..only if there had been a separate petition for the child. ..and would only be relevant if OP natz after child turned 21. 
 

 

Thank you, if I now fill application for my step daughter ( over 21 now) , can her application be proceed quickly ? 

[Family 3,988]

23 minutes ago, david-chicago said:

Thank you, if I now fill application for my step daughter ( over 21 now) , can her application be proceed quickly ? 

No …it will have to wait for priority date to be current. See link in prev response. They may approve it quickly but will be many years .

Make sure you indicate , she will do consular process . 
 

 

[david-chicago 0]

11 hours ago, Family said:

Since F-1 visa cat for adult daughter of USC will take a decade or so , best case scenario. …encourage her to laser focus on her education with eyes on employment visa …H-1B or fields in the NIW realm . 
Unfortunate misstep in your naturalizing , as it means no priority date retention nor age out protections . 
 

Family- Sponsored	All Chargeability  Areas Except Those Listed	CHINA-mainland  born	INDIA	MEXICO	PHILIPPINES
F1	08FEB15	08FEB15	08FEB15	01MAY01	01MAR12
F2A	08SEP20	08SEP20	08SEP20	15AUG20	08SEP20
F2B	22NOV15	22NOV15	22NOV15	22OCT03	22OCT11
F3	01OCT09	01OCT09	01OCT09	08SEP98	08JUN02
F4	08JUN07	08JUN07	15DEC05	15OCT00	15JUN03

https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2024/visa-bulletin-for-april-2024.html

 

Thank you for your information I will try my best to figure it out. 

[Dashinka 24,493]

How far along are you on the F2A for your spouse?  It appears the I130 was filed in 2022, so still a good two years out by my math.  I am wondering if an opt-out request of the automatic conversion to IR1 would be an option here to maintain your step-daughter as a derivative.  Depends of course on your family priorities.