Immigrantly

Immigration thoughts from an Immigration Lawyer.

Why is it a good idea to file for your immediate family even if you are still an LPR?

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It is widely known that a spouse and child (under 21 & unmarried) of a U.S. citizen can get a green card fairly soon. This is because there is no quota on the number of green cards can be issued to those applicants, which means they don’t have so-called “waiting time.” They only have to wait as long as the adjudication process takes (typically half year if applying in the U.S., and 9 months if applying from abroad).

On the other hand, a spouse and child of a Legal Permanent Resident (LPR) is subject to the quota, and must wait in line until his/her priority date becomes current. According to the January 2015 Visa Bulletin, the cut-off dates for these applicants are February 2013 (for India-born applicants) and  April 2013 (for all other applicants). This means that if an LPR submits a petition for his/her spouse or children now, there will be about 2 years of waiting time on top of the processing time.

One way to avoid this long wait time is for the LPR petitioner to become a U.S. citizen. That way, there will be no “waiting time.” However, there are two issues. First, it takes about 6 months for an LPR to be naturalized. Second, the LPR may not yet be eligible to naturalize (e.g., doesn’t meet the physical presence requirement, etc.) Many people misunderstand that this means they must wait until they become a U.S. citizen before they can petition for their spouse/child’s green card application. That is not true. Even if you are still an LPR, you should submit the petition as soon as possible. Here are the reasons:

1. You can upgrade your petition: You can first submit the petition (Form I-130) as an LPR, which will put you into the quota-subject category (F2A). However, once you become a U.S. citizen, you can upgrade your petition to that of an immediate family member of a U.S. citizen. Then your case will move forward without any “waiting time.” Since you have already submitted Form I-130, you do not need to submit it again. All you need to do is to send a letter to U.S. Citizenship and Immigration Services (USCIS) or National Visa Center (NVC) (depending on whether you are applying within or outside of U.S.), along with your naturalization certificate and the last notice sent by USCIS or NVC. In the letter, state that you have become a U.S. citizen, therefore your spouse/child should be able to proceed with the green card application process.

2. It saves you time: Currently the processing time for I-130 petition is about 5 months. If you file the petition while you are still an LPR, you will save 5 months of the total processing time. For example, you are currently an LPR, and you decided to get married and want to petition for your spouse. Since you don’t want to wait for 2+ years, you decided to become a U.S. citizen. The best way to do it is to file your naturalization application as soon as possible, get married, and file the I-130 petition. This way, both the naturalization application and I-130 petition will be pending at the same time. By the time you get your U.S. citizenship in 6 months, the I-130 should have already been approved. At that point, you can send the letter mentioned above to USCIS or NVC for further processing, instead of just starting to file I-130 petition if you waited to file until you became a U.S. citizen.

This strategy works well particularly for applicants who reside outside of the U.S. Since the normal processing time will be 9+ months, saving 5 months will be a big relief. On the other hand, if applicants are in the U.S. and are planning to file for Adjustment of Status (Form I-485), this strategy may not save so much time. Since the current I-485 application processing time is about 4 months, if you wait and submit I-130 and I-485 at the same time, it will take about 5 months. If you file I-130 first, the I-485 will still take 4 months. Moreover, if you file I-130 as an LPR, USCIS may send your file to NVC during the expected “waiting time.” When you send the letter informing that you have become a U.S. citizen, NVC has to send your file back to USCIS, which may take a month or so.

In conclusion, if you are currently an LPR and wants to petition for your spouse or child, especially if they are outside of the U.S., it is a good idea to file for I-130 immediately. Be aware, thought, this is the best strategy in the current system; if the processing time or the “waiting time” changes, there may be a better strategy in the future.

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