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LPR Mom sponsored son in F2A category

Discussion in 'Family Based Green Card -Through Marriage/Relative' started by staplesbutton, Nov 20, 2007.

  1. staplesbutton

    staplesbutton New Member

    Hi there:

    My Mom sponsored me in the F2A category in 2002 and the petition was approved by USCIS in June 2005. Since our priority date(Novemner 2002) was not current in June 2005, the petition sat with NVC until last month when my priority date became current and they sent my mom the affidavit of support forms etc.

    Anyway, my question was that I got married in July 2006, am I still eligble for a Green Card and proceed with my application or is my application now considered void.

    P.S My mom is still on a greencard and NOT a USC.

    Any valuable response regarding this would be great.
  2. PraetorianXI

    PraetorianXI Banned

    The petition is void. Green Card holders can not sponsor married children.
  3. ccordova624

    ccordova624 Registered Users (C)

    Sorry Staples, PraetorianXI is 100% correct your mom's petition has been void upon your marriage...
  4. PraetorianXI

    PraetorianXI Banned

    Yes. And please do not start asking "What if I get divorced....?" questions :cool:
  5. austriacus

    austriacus Registered Users (C)

    What if the mom becomes a citizen? Can the petition be changed to F3 category or do they have to start over with a new PD?
  6. LucyMO

    LucyMO Registered Users (C)

    have to start over. If mom became a citizen first, there would be no problem.
  7. TheRealCanadian

    TheRealCanadian Volunteer Moderator

    It's arguable that the old priority date could be retained.
  8. Triple Citizen

    Triple Citizen Registered Users (C)

    I personally reckon that the old PD cannot be used. However I am very much interested to know if someone in a similar situation was ever able to retain the original PD with a fresh I-130, as long as the sponsor was the same.
  9. TheRealCanadian

    TheRealCanadian Volunteer Moderator

    I've never heard anything definitive from INS or USCIS that says that the PD is lost. The whole principle of Priority Date portability rests on the notion that if an applicant has a prior I-130 or I-140 approved and said petition was not revoked based on fraud or misrepresentation, then the alien can claim the earlier priority date.

    I don't see ineligibility for the benefit as canceling this, so long as the petition was approved. To give an example, let's say an alien is petitioned by a US employer and the I-140 is approved. Prior to the alien becoming a permanent resident, the employer decides to no longer sponsor the alien and informs USCIS of this fact. The alien is now ineligible for permanent residency based on that I-140, but can still use the PD at a later date.

    I don't consider it a stretch to make the same argument on the FB side.
  10. Triple Citizen

    Triple Citizen Registered Users (C)

    I agree in principle with you, but has it successfully happened for an FB based GC applicant?

  11. TheRealCanadian

    TheRealCanadian Volunteer Moderator

    I've never heard of a single case where the claim was made. We're in a situation where there doesn't appear to be any known precedent one way or another. But considering the significant advantage to be had by claiming the earlier PD and the reasonableness (IMO) of such an argument, to me it would be logical to try and make the claim.
  12. LucyMO

    LucyMO Registered Users (C)

    what would be the purpose of USCIS cancelling such a petition if the beneficiary marries, if the beneficiary could retain the original PD? that would defeat the purpose of starting over. Just to collect money for a new I-130 but letting you keep the old PD?
  13. TheRealCanadian

    TheRealCanadian Volunteer Moderator

    Because priority date retention and petition eligibility are two orthogonal concepts. You can keep a priority date from a petition you are no longer eligible for.

    You don't start over just to punish someone; you start over because the I-130 is no longer valid since the alien no longer qualifies. If, however, the alien qualifies under a different FB category then the PD should be portable.

    It's not just to collect money; if the alien has a different sponsor then a new I-130 must be filed.
  14. LucyMO

    LucyMO Registered Users (C)

    but if the beneficiary divorces, he/she will once again be an unmarried son/daughter of an LPR - however, this won't work "backwards", right?
  15. TheRealCanadian

    TheRealCanadian Volunteer Moderator

    I don't know if the FB2A I-130 remains valid if the beneficiary marries and then divorces, or for certain if the PD is retained. I think we're getting into the area of "how many angels can dance on the head of a pin?"

    All I'm trying to do is suggest that there may be a way to marry and retain the old PD, thereby allowing him to file the I-130/I-485 immediately after marriage. I do not know if this will work or not - but I've not seen anything that would prevent it. It's certainly worth the $300 or so it will cost to get a few consultations.
  16. raevsky

    raevsky Registered Users (C)

    I see the following here - http://www.state.gov/documents/organization/87863.pdf

    So, so called portability of petitions works only for two cases:
    1. I-130 filed by the same petitioner to the same beneficiary in the same immigrant classification. The petition seems reconfirmation, and priority date is retained.
    2. I-130 filed in F2A category. Later I-130 is filed in F2B category to the same beneficiary by the same petitioner. Priority date is retained.

    That is it.

    No other case of I-130 retains priority date. No case of I-140 retains priority date.

    However, because of CSPA case 2 does not need to be used most of the time. Case 2 has to be used only when CSPA could not be applied. Examples when it could not be applied are:
    - Limitation of 1 year (between priority date being current and date of application for a visa) has been exceeded.

    I do not see any other examples, though.

    The part of my message about I-140 is not right - see further comments down.
    Last edited by a moderator: Dec 20, 2007
  17. TheRealCanadian

    TheRealCanadian Volunteer Moderator

    Just because priority date portability for EB cases isn't mentioned in that specific part of the FAM, doesn't mean it doesn't exist.
  18. raevsky

    raevsky Registered Users (C)

    The document name is 42.53 Priority Date of Individual Applicants. This is the complete set of rules regarding priority dates. No other rules exist - clearly this document is the only instruction for consulates on the subject, they need to have things simple, and if 9 FAM document on the subject exists, that is the complete one. However, the case of I-140 was mentioned (which I did not see first).

    Last edited by a moderator: Dec 20, 2007

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