Naturalization Is a Family Affair

By Attorneys Lorella T. Hess & Nancy E. Miller

One important reason to consult an attorney before applying for U.S. citizenship (also known as naturalizing) is to understand how your becoming a citizen will affect the rest of your family.   For example, your lawful permanent resident (LPR) children under age 18 may become U.S. citizens as derivatives of your naturalization.   Under current law (which may change), naturalization also allows you to begin the process of sponsoring your parents, married sons and daughters, or siblings.  And, if you have already started to sponsor your spouse or unmarried sons and daughters, the timing of your naturalization matters to them too.  Becoming a U.S. citizen will change the classification of the immigrant petitions you filed for them as an LPR. Non-immediate relative family-based categories have backlogs and varying-time waiting periods.

When you become a citizen, your petition converts from a spouse/child under 21 years old of an LPR (F-2A) to an Immediate Relative petition (parent/spouse/child of a U.S. citizen), and your spouse becomes eligible for a green card or visa immediately.  On the other hand, the Immediate Relative category has no derivatives.  They have to be applied for separately.

You can wait to naturalize until your spouse and children have immigrated with your spouse’s petition, or file new separate Immediate Relative petitions for the children.  The best choice for your family will depend on many factors which should be discussed thoroughly with your immigration attorney.

Under the Child Status Protection Act, when you become a citizen, your F2A petition converts to that of Immediate Relative and the law freezes your under 21-year old child’s age.  Thus, your child stays in Immediate Relative status.  The United States Court of Appeals for the Ninth Circuit (which is where California is located) just issued a decision which extends this protection to children who turn 21 shortly after their parent naturalizes, in certain situations.

When you file a petition for your under 21-year old child and that child turns 21 before getting their green card, the category of your petition is converted from category F2A to F2B (LPR’s unmarried son/daughter age 21+).  When you become a citizen, your petition converts again, from F2B to F1 (U.S. citizen’s unmarried son/daughter age 21+).  The waiting time in these categories can be ten years or more.  Often the wait is shorter for F2B than for F1; in that case a beneficiary can “opt out” of the conversion and go back to category F2B.

When you become a citizen your petition converts from F2B to F1 as above, and the still-unmarried beneficiary may opt out of that conversion.  If the beneficiary later gets married, s/he keeps the F1 conversion and your petition converts again to category F3 (U.S. citizen’s married son/daughter).  The waiting time for F3 petitions is 5-10 years longer than for F1 petitions, but your petition itself survives the wedding and the new spouse becomes a derivative beneficiary.  If your son or daughter’s marriage later ends, your petition converts back to F1 without a derivative spouse.

LPRs cannot petition for married sons and daughters, so your petition is revoked or denied as a matter of law immediately upon the marriage.  Unfortunately, even if the beneficiary’s marriage ends, your petition cannot be revived.  As a citizen, you could start over with a new F3 petition for your married son (or a new F1 petition for your widowed or divorced daughter), but the new petition will have its own waiting period.  If you are naturalizing and have petitioned for a son or daughter who wants to marry, you should all be aware that a wedding before you take the citizenship oath will kill the petition.  On the other hand, a wedding after your oath will convert your petition from F1 to F3 and make the spouse a derivative beneficiary for as long as the marriage lasts.

Achieving U.S. citizenship can be the culmination of a lifelong dream.  Like most aspects of immigration law, it is complicated and has less-than-obvious potential pitfalls.  When to apply for citizenship and how that will affect your family members is something that should be discussed in depth with a knowledgeable and experienced immigration attorney before you decide to apply.