Miscellaneous Items for Family-Based Immigration

Miscellaneous Items for Family-Based Immigration

Applicants are advised to not make any final travel arrangements, not to dispose of their property, and not to give up their jobs until visas have been issued to them. An immigrant visa is valid for 6 months from the date of issuance.

Visas Ineligibility/Waiver

The immigration laws of the United States, in order to protect the health, welfare, and security of the United States, prohibit the issuance of a visa to certain applicants. Examples of applicants who must be refused visas are those who have a communicable disease such as tuberculosis, a dangerous physical or mental disorder, or are drug addicts; have committed serious criminal acts; are terrorists, subversives, members of a totalitarian party, or former Nazi war criminals; have used illegal means to enter the United States; or are ineligible for citizenship. Some former exchange visitors must live abroad for two years. Physicians who intend to practice medicine must pass a qualifying exam before receiving immigrant visas. If found to be ineligible, the consular officer will then advise the applicant if the law provides for some form of waiver.

Classes of aliens ineligible to receive visas

Children of Lawful Permanent Residents

While separate petitions must be filed for children of U.S. citizens, the process is much more involved for children of lawful permanent residents.

When filing an I-130 petition for spouses, children can be named in that petition, or a separate I-130 can be filed for each child.

It is advisable to file a separate Form I-130 for children who are likely to turn 21 in the next 5 years if you might apply for a U.S. citizenship.

Children who turn 21 before their priority date becomes current will automatically drop into the F2B category. However, under the Child Status Protection Act (CSPA), the child can subtract the amount of time it took the U.S. Citizenship and Immigration Services (USCIS) to approve the initial visa petition from their age . You have to wait until your family’s visa petition has been approved, and the child’s Priority Date has become current. At that time, you calculate the number of days that the visa petition was pending with the USCIS, and subtract it from the child’s actual age. If that number is less than 21, the child may continue with his/her green card application under the F2A category. The child has 1 year after becoming eligible to submit their green card application.

CSPA Calculator

If the child drops into the F2B category, and the CSPA does not help, it is known as the “age out” problem, and he/she will face a wait of several more years. However, it is a different case if the child turns 21 after the petitioner has become a U.S. citizen.

Children who get married will drop out of the process altogether. When the parent becomes a U.S. citizen, he/she can file a new petition.


If you get divorced before you apply for an immigrant visa or adjustment of status, your visa petition is cancelled and you and your derivative beneficiaries lose your green card eligibility.

If you are a victim of emotional or physical abuse by your petitioner spouse, you can file a special self-petition called a Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant, any time until the divorce becomes final or upto 2 years afterward, as long as you can prove that the divorce was related to domestic violence.

Petitioner’s Death

If the petitioner dies, it cancels the visa petition. If the petitioner dies before the petition is approved, there is no way to continue the petition.

However, if the petitioner dies after the petition is approved, according to the Family Sponsor Immigration Act, the following relatives of the original petitioner can reinstate the petition by filing an alternative affidavit of support: Spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild, or a legal guardian of the sponsored alien.

In order to reinstate the petition, the substitute sponsor must send the I-864 form meeting all the income guidelines that the original petitioner would have to have met, along with the proof that the substitute sponsor is related to the original petitioner by one of the relationships described above. As there are no specific forms for this, the substitute sponsor must write a cover letter regarding reinstating the petition.


  • Spouse and children (unmarried, under 21) of a U.S. citizen can still apply for a green card after the petitioner’s death.

    It is also helpful in the cases where the permanent resident is already eligible for citizenship and has an unrecoverable illness. It may be possible to expedite the citizenship process by requesting the USCIS in such cases.
  • For humanitarian reasons, in rare cases, even after the death of the petitioner, the USCIS allows the green card process to continue for bereaved spouses of permanent residents or others who aren’t eligible as widows and children of a U.S. citizen.

Beneficiary’s Death

If your permanent resident spouse has filed your petition under the F2A category and you die, your children would not be eligible for a green card as your derivative beneficiaries, unless your spouse has filed or can file a separate petition for them in the F2A category.

If you, as a permanent resident spouse, have not filed a separate petition in the F2A category for your children and your spouse dies, then while filing new petitions, you should request the USCIS to “recapture” the deceased parent’s priority date.

Loss of Green Card Status

If you as a permanent resident have filed petitions for your family and you lose your green card status, your family loses the eligibility for a green card as well.

Tips to retain a green card

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