201203271749283257By Joseph Elias and Nancy Miller

The August 2013 Visa Bulletin provides welcome news for many immigrant families separated by visa backlogs. Beginning in August, there will be no visa quota backlog for the spouses and single children of lawful permanent residents known as the F-2A category. The State Department predicts visa numbers will remain available for this category for the next several months before retrogressing once again.

The F-2A category includes spouses and single children under 21 of permanent residents. Visa numbers for F-2As are typically backlogged by several years and available only to those who had a petition filed for them before a certain cutoff date known as the priority date. This is the first time in decades that F-2A visa numbers have become current. A current visa number means F-2A beneficiaries may Consular process their immigrant visas regardless of when their immigrant visa petitions were filed. F-2A beneficiaries already in the U.S. can also file for adjustment of status regardless of their priority date.  Those F-2As who have approved petitions and are waiting for their priority date to be reached will immediately be eligible for visas beginning in August. This will also be a great benefit to new permanent residents who plan to marry. They can expect their spouses and children to join them in the U.S. while the visa numbers remain current.

The decision to get married is carefully weighed by immigrants due to long visa wait times. A common example of this is the adult, single, children petitioned by their permanent resident parents. These are known as the F-2B category. If they were to marry, they would lose F-2B eligibility, and could no longer immigrate. In order to preserve the ability to immigrate to the U.S., they forego marrying their loved ones. They wait many years for their visa number to become available. Once they finally immigrate to the U.S., they are then free to return home and marry their loved ones. Only then can they petition their spouses and children under the F-2A category. Immigrants such as these who put off marriage can now expect to be reunited much faster once they petition their loved ones under F-2A.

Another group of immigrants who have been impacted by the backlogs and will greatly benefit from F-2A visa availability are those known as “derivatives”. The family and employment-based preference immigrant categories allow a principle immigrant’s unmarried child under 21 to immigrate with the principle as a derivative immigrant. Many of these derivatives have children of their own and also elect not to marry so that they can immigrate to the U.S. with their parents. Unfortunately, U.S. immigration law does not allow the children of a derivative to also immigrate with the derivative. This means the derivative is forced to leave his or her child behind in the home country. Only after the derivative has become a permanent resident can he or she then petition the child that was left behind.

Understandably, many derivatives facing the predicament of leaving their child behind, elect not to immigrate with their parents. Those who immigrate face the anguish of leaving a child behind, possibly, for years. Now that F-2A will be current, these derivatives do not have to worry about being separated for long periods of time. They can expect their children to join them once the F-2A processing is completed.
F-2A visa availability will also benefit same-sex spouses. Now that the Supreme Court has struck down the Defense of Marriage Act, permanent residents who enter into same sex marriages will be able to petition their spouses as F-2As. They too can expect their spouses to quickly immigrate while visa numbers remain current.

The F-2A visa numbers will not remain current for long. This means permanent residents who are planning to marry should do so quickly in order to be able to petition their spouses. Permanent residents who have not yet petitioned their spouses or children should do so immediately. Those who have been waiting for numbers to become current should be coordinating with the U.S. Consulates to conduct the visa interviews of their spouses and children. The State Department attributes the F-2A visa numbers being current to low demand. No backlog in visas will now encourage more people to file. This will increase demand and result in retrogression once again. Those who act sooner are the most likely to benefit from this rare window of opportunity which has opened up. It should not be squandered. Petitions and applications not properly prepared will result in rejections or delays in processing and could subject the family to visa number retrogression. Great care should therefore be taken to ensure petitions and visa applications are filed properly. Petitioners and applicants should seek the advice and assistance of competent legal counsel so that nothing is left to chance.

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