Can it be faster to be petitioned by a permanent resident?

In my Consulta Migratoria® column this week I answer a question from a reader whose father filed two family petitions - one when he was a permanent resident and one when he became a citizen.

Each case is different and the answers vary depending on the immigration history of each person. Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before beginning any process.

This is the column:

I am Mexican and my father applied for me as a resident in 1996 when I was 23 years old. In 2014 he became a citizen and petitioned me again. Immigration sent us a letter saying that they approved the petition my father filed in 1996 and that I have to wait until my priority date to travel to the United States arrives. I have never married and I am currently living in Mexico, should I wait as a resident or citizen daughter? -Alejandra S.

Alejandra, the processing time for a family petition depends on the circumstances - such as when the petition was filed, which family member is being petitioned and their country of origin, and the availability of immigrant visas.

In your case, the wait is long because you are Mexican and because your father asked for you when you were over 21 years old.

When your father filed the family petition on your behalf in 1996, he was assigned the F-2B category, which is for unmarried children over the age of 21 of permanent residents.

Upon becoming a citizen, the U.S. Citizenship and Immigration Services (USCIS) should have changed the petition to the F-1 family category, unmarried children over the age of 21 of U.S. citizens. Your father should never have filed a new family petition as a citizen to make this change.

If any notary, immigration consultant or legal representative recommended that your father file a new family petition as a citizen, they gave him bad advice. That process he did in 2014 was a waste of time and money.

The initial date of a family petition is the starting point for waiting for an immigrant visa. The petition your father filed as a resident in 1996 is almost 20 years old. Your case is in the home stretch.

If you were to take your citizen father's 2014 petition, you would have to wait approximately another 20 years!

Logic would indicate that if a citizen files a petition, it would be processed more quickly than that of a permanent resident. However, according to the December 2015 Visa BulletinCurrently, family petitions filed by permanent residents on behalf of unmarried Mexican children over the age of 21 are being processed more quickly.

According to the Visa Bulletin there are immigrant visas available for Mexicans in the F-1 family categories who filed cases before December 9, 1994 and for the F-2B category before September 8, 1995. Since your case was filed in 1996, there is no immigrant visa available for you at this time, but it is not too far away. You should continue to check the Visa Bulletin to see when you can begin the process of applying for an immigrant visa with the U.S. Department of State.

If the availability of immigrant visas remains the same, you may want to have your case processed under the F-2B family category, as a child of a permanent resident.

If you wish, the federal government allows you to choose to remain in the F-2B family category. You will need to write to USCIS and/or the Department of State to let them know of your decision to retain your priority date under the F-2B family category and not be transferred to the F-1 family category because your parent became a citizen.

I recommend that you consult with an immigration attorney or a federally accredited representative before you begin any immigration proceedings.

 

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