F2B case with complication

[Hung Pham 0]

Hi, 

 

My mom is a permanent resident and sponsor my brother in 2016, but in 2017 my brother married and divorced in 2020. After I've done with paperwork in NVC steps, they said they will shcedule interview, but I know that my brother will be denied in interview because he married and divorced. Now if my mom became US citizen, will we be able to recapture the priority date from F2B?

 

Thank you

[Hung Pham 0]

If not, after interview and case closed, can my mother file another petition for my brother since my brother is single from divorced?

[Boiler 43,479]

The first case died as soon as he married, she can file for him again as soon as the divorce was completed.

[NEO2023 4]

INA 203(a)(2)(B) says that for the petition to be valid, your brother should be unmarried, which your brother satisfied in 2016. In addition to that, AFAIK, law is silent about what happens while waiting for visa. Since he is currently unmarried, I don't think there will be any problem with his interview. 

[limegreenbowler 44]

14 hours ago, NEO2023 said:

INA 203(a)(2)(B) says that for the petition to be valid, your brother should be unmarried, which your brother satisfied in 2016. In addition to that, AFAIK, law is silent about what happens while waiting for visa. Since he is currently unmarried, I don't think there will be any problem with his interview. 

This isn't true, unless the parent naturalized before the son got married, as there is no category for married children of permanent residents. Adult children of citizens can move between F1 and F3, but as some others have pointed out, the petition was voided when he got married, even if he subsequently got divorced. The parent will need to file a new petition, and the old PD cannot be maintained.

[Boiler 43,479]

5 minutes ago, limegreenbowler said:

This isn't true, unless the parent naturalized before the son got married, as there is no category for married children of permanent residents. Adult children of citizens can move between F1 and F3, but as some others have pointed out, the petition was voided when he got married, even if he subsequently got divorced. The parent will need to file a new petition, and the old PD cannot be maintained.

Correct

 

Obviously we have seen this many times, the last one I remember was that Canadian Lady who seemed to be working on the basis what they do not know etc, she was ,married to the F2b and thought they would not notice when she asked for a GC.

[NEO2023 4]

On 4/11/2024 at 10:57 PM, limegreenbowler said:

This isn't true, unless the parent naturalized before the son got married, as there is no category for married children of permanent residents. Adult children of citizens can move between F1 and F3, but as some others have pointed out, the petition was voided when he got married, even if he subsequently got divorced. The parent will need to file a new petition, and the old PD cannot be maintained.

 

The original question is whether the petition becomes void when her brother gets married. As I said, the law is silent on this issue, which means it's a grey area. If someone claims the petition is void, they should provide a reference to the relevant legal rule.

 

Regarding the brother's visa situation, if he was still married during the interview, he would not be eligible for a visa. However, since he is already divorced, his marital status at the interview will be unmarried.

 

The law could certainly benefit from an update to address situations like this. However, as we know, US immigration law dates back to the Immigration and Nationality Act of 1965 (INA). Back then, waiting lines for visas likely weren't a major concern!

 

 

[Boiler 43,479]

As you are the only person I have come across who thinks a LPR can sponsor a married child I think the onus is on you.

[nastra30 1,988]

3 hours ago, NEO2023 said:

 

The original question is whether the petition becomes void when her brother gets married. As I said, the law is silent on this issue, which means it's a grey area. If someone claims the petition is void, they should provide a reference to the relevant legal rule.

 

Regarding the brother's visa situation, if he was still married during the interview, he would not be eligible for a visa. However, since he is already divorced, his marital status at the interview will be unmarried.

 

The law could certainly benefit from an update to address situations like this. However, as we know, US immigration law dates back to the Immigration and Nationality Act of 1965 (INA). Back then, waiting lines for visas likely weren't a major concern!

 

 

Petition is void as soon he got married. Simple as that.

[limegreenbowler 44]

4 hours ago, NEO2023 said:

 

The original question is whether the petition becomes void when her brother gets married. As I said, the law is silent on this issue, which means it's a grey area. If someone claims the petition is void, they should provide a reference to the relevant legal rule.

 

Regarding the brother's visa situation, if he was still married during the interview, he would not be eligible for a visa. However, since he is already divorced, his marital status at the interview will be unmarried.

 

The law could certainly benefit from an update to address situations like this. However, as we know, US immigration law dates back to the Immigration and Nationality Act of 1965 (INA). Back then, waiting lines for visas likely weren't a major concern!

 

 

The law is not silent on this issue. The law for automatic revocation is in 8 CFR 205.1(a): https://www.ecfr.gov/current/title-8/chapter-I/subchapter-B/part-205/section-205.1

§ 205.1 Automatic revocation.

(a) Reasons for automatic revocation. The approval of a petition or self-petition made under section 204 of the Act and in accordance with part 204 of this chapter is revoked as of the date of approval:

 

(I) Upon the marriage of a person accorded status as a son or daughter of a lawful permanent resident alien under section 203(a)(2) of the Act.

[limegreenbowler 44]

3 minutes ago, limegreenbowler said:

The law is not silent on this issue. The law for automatic revocation is in 8 CFR 205.1(a): https://www.ecfr.gov/current/title-8/chapter-I/subchapter-B/part-205/section-205.1

§ 205.1 Automatic revocation.

(a) Reasons for automatic revocation. The approval of a petition or self-petition made under section 204 of the Act and in accordance with part 204 of this chapter is revoked as of the date of approval:

 

(I) Upon the marriage of a person accorded status as a son or daughter of a lawful permanent resident alien under section 203(a)(2) of the Act.

And this exact scenario is outlined in the Adjudicator's Field Manual (the new Policy Manual isn't fully online yet, but this guidance still stands): https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm21-external.pdf 

 

Review automatic revocation on p. 68:

The grounds for automatic revocation are set forth in 8 CFR 205.1(a) . Officers should be familiar with each of the events spelled out in the regulation. Under each of these grounds, the revocation is automatic when the specified events occurs, regardless of whether USCIS is aware of its occurrence or not, and regardless of when (or even whether) USCIS provides notification of the revocation. For example, if an alien who is the beneficiary of an approved 2nd preference visa petition as the unmarried son or daughter of a lawful permanent resident marries before immigrating to the United States or adjusting status, the petition’s approval is revoked. It should be noted that although it is the event of the marriage which triggers the revocation, the revocation itself is as of the date of the petition’s approval (in automatic revocation proceedings, revocation upon notice is different). Furthermore, because the petition’s approval has been revoked, it does not become valid again if the marriage of the beneficiary is terminated through divorce or death of the beneficiary’s spouse. (However, if the marriage is annulled by a court of competent authority, the legal effect is that the marriage never occurred and therefore, neither did the revocation.) 

[NEO2023 4]

On 4/14/2024 at 2:45 PM, limegreenbowler said:

And this exact scenario is outlined in the Adjudicator's Field Manual (the new Policy Manual isn't fully online yet, but this guidance still stands): https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm21-external.pdf 

 

Review automatic revocation on p. 68:

The grounds for automatic revocation are set forth in 8 CFR 205.1(a) . Officers should be familiar with each of the events spelled out in the regulation. Under each of these grounds, the revocation is automatic when the specified events occurs, regardless of whether USCIS is aware of its occurrence or not, and regardless of when (or even whether) USCIS provides notification of the revocation. For example, if an alien who is the beneficiary of an approved 2nd preference visa petition as the unmarried son or daughter of a lawful permanent resident marries before immigrating to the United States or adjusting status, the petition’s approval is revoked. It should be noted that although it is the event of the marriage which triggers the revocation, the revocation itself is as of the date of the petition’s approval (in automatic revocation proceedings, revocation upon notice is different). Furthermore, because the petition’s approval has been revoked, it does not become valid again if the marriage of the beneficiary is terminated through divorce or death of the beneficiary’s spouse. (However, if the marriage is annulled by a court of competent authority, the legal effect is that the marriage never occurred and therefore, neither did the revocation.) 

 

Thanks for the information. That's a regulation, not a law. Currently, the law remains silent on this issue.

 

However, due to this regulation, if one goes to court in the event of a visa denial due to marriage, he is likely to lose.

[Family 3,483]

On 4/15/2024 at 11:28 PM, NEO2023 said:

 

Thanks for the information. That's a regulation, not a law. Currently, the law remains silent on this issue.

 

However, due to this regulation, if one goes to court in the event of a visa denial due to marriage, he is likely to lose.

Your point is valid…see if you can find some recently litigated cases in the various circuits. ..I am not current 

Off the top of my head, I know if a beneficiary married then later divorced they were able to get F 2B visa ….all disclosed at NVC and interview…so no funny business. I know it DID , but don’t know what position consulates take now

 

[nastra30 1,988]

On 4/16/2024 at 2:28 AM, NEO2023 said:

likely to lose.

He WILL lose.

[limegreenbowler 44]

11 hours ago, Family said:

Your point is valid…see if you can find some recently litigated cases in the various circuits. ..I am not current 

Off the top of my head, I know if a beneficiary married then later divorced they were able to get F 2B visa ….all disclosed at NVC and interview…so no funny business. I know it DID , but don’t know what position consulates take now

 

I think in those cases you'd either see an annulment or some other legal finding that the marriage was never valid to begin with, and I imagine that government lawyers looked at the case and said this was an exception that met the law. I think the distinction between law and regulation in this case is a little silly--the law is written in broad strokes and cannot account for every eventuality, and in our system it's up to executive branch agencies to write regulations about how to implement the law. In this particular case, given that there is no provision for married sons or daughters of LPRs to have a category of their own (whereas there are for adult children of citizens), a clear reading of the law indicates there was no intent by Congress for them to be able to immigrate, and so the petition in cancelled. Any applicant would be able to litigate this, but given that they're going against more than 50 years of the law as implemented, I don't think there's any chance of success.