Understanding Separate Immigrant Visa Petitions for Children of a Naturalized U.S. Citizen

When a Green Card holder becomes a naturalized U.S. citizen, they gain the privilege of sponsoring certain family members for immigration benefits. However, it may come as a surprise that even though a child of the U.S. citizen petitioner was included in an earlier petition as a Green Card holder, a separate immigrant visa petition must be filed for each child. In this article, we will explore the reasons why a child is not automatically included as a derivative in their parent's immediate relative petition (IR petition) after the petitioner naturalizes. By understanding the underlying principles and legal requirements, you will gain clarity on the process and why individual petitions are necessary.

I. Differentiating Between Green Card Holder and U.S. Citizen Petitioner

To understand the distinction between the Green Card holder and U.S. citizen petitioner, it's crucial to recognize the legal status and benefits associated with each.

Green Card Holder (Lawful Permanent Resident): A Green Card holder, also known as a lawful permanent resident, enjoys the privilege of living and working permanently in the United States. They can sponsor certain family members, including their spouse and unmarried children, for lawful permanent residency through family-based immigrant visa petitions.

U.S. Citizen Petitioner: Upon naturalization, a Green Card holder becomes a U.S. citizen, acquiring additional rights and benefits. U.S. citizens have broader sponsorship options, including the ability to petition for immediate relatives, such as spouses, parents, and unmarried children, regardless of age.

II. Understanding the Categorical Distinction The differentiation between the Green Card holder and U.S. citizen petitioner lies in the category under which they can petition for their family members.

Family Preference Categories: When a Green Card holder files an immigrant visa petition for their unmarried child (under 21 years old) or their married child, these petitions fall under the Family Preference Categories. These categories have annual numerical limitations, resulting in extended waiting times for visa availability.

Immediate Relative Category: Upon naturalization, the petitioner can shift from the Family Preference Categories to the Immediate Relative (IR) category. Immediate relatives of U.S. citizens, including spouses, parents, and unmarried children under 21, are not subject to numerical limitations. This means that immigrant visas are readily available, significantly reducing waiting times.

III. Legal Requirements for Separate Petitions: The need to file separate immigrant visa petitions for children arises due to legal requirements and the categorical distinctions outlined by the immigration laws. Several factors contribute to this process:

Change in Petitioner's Status: When the Green Card holder becomes a U.S. citizen, their legal status and rights change. As a U.S. citizen, they are no longer limited to the Family Preference Categories and can take advantage of the Immediate Relative category. Consequently, to align with the new category, the U.S. citizen petitioner must file separate immigrant visa petitions for their children.

Categorical Eligibility: The IR category specifically includes unmarried children under 21 years old. If a child turns 21 or gets married before the U.S. citizen petitioner files a separate immigrant visa petition on their behalf, the child may lose eligibility for derivative status. Filing separate petitions ensures that each child retains eligibility within the appropriate category and avoids potential complications or delays.

Numerical Limitations: The Immediate Relative category, unlike the Family Preference Categories, does not have numerical limitations. By filing separate petitions for each child, the U.S. citizen petitioner can expedite the process, ensuring that each child receives their own visa number and can proceed with the immigration process without waiting for others.

IV. Benefits and Implications: Filing separate immigrant visa petitions for each child offers certain benefits and implications:

Expedited Process: By filing separate petitions, each child can benefit from the faster processing times in the Immediate Relative category. This eliminates the need to wait for a single petition to progress, potentially reducing the overall waiting time for the family members to join the U.S. citizen petitioner.

Independent Immigration Process: Each child's separate petition allows them to establish their individual immigration records and paths. This can be advantageous in cases where children may have different circumstances or need to pursue specific immigration benefits independently.

While it may seem counterintuitive that a U.S. citizen petitioner must file separate immigrant visa petitions for their children after naturalization, the legal requirements and categorical distinctions behind this process are crucial to understand. By filing separate petitions, each child can benefit from the Immediate Relative category's advantages and expedited processing times. This ensures that each child receives their own visa number, retains eligibility within the appropriate category, and establishes their independent immigration record. If you find yourself in this situation, consulting with an experienced immigration attorney is recommended to navigate the process efficiently and ensure compliance with all necessary legal requirements.

Should you or your loved one have any questions or need representation, please do not hesitate to call us, email us at info@khunkhunlaw.com or review other options to get in touch with us for an immigration consultation. We have represented many clients with successful results even with the most difficult set of facts.