When navigating the process of becoming a permanent resident or a citizen, there is always lots of stress and many questions that go beyond completing the application or preparing for the interview. There are other questions that relate to events in our lives that can impact our eligibility to receive benefits or that impact the specific steps involved in the over-all process. For example, let’s say you have been approved for a visa as a result of a family petition, but during the waiting period for the availability of your visa, something changes in your life of your sponsor’s life.
Depending on where you are from originally, your wait could be nearly 20 years. A lot can happen in such a long period of time, especially if your sponsor was elderly at the time of the initial application or you were near the age of adulthood. What happens if you decide to get married? What happens if your sponsor dies? Does your right to become a permanent resident also die? Luckily the answer is no. The immigrant beneficiary does not necessarily lose the ability to move forward with the green card process.
Depending on the facts of the case (whether the petition was approved already or still being reviewed), the petition would need to be converted to a special visa type and the immigrant would then follow the specific requirements of the new process. Under this particular process, beneficiaries can continue with their case as if the petitioner had not died and they can continue with adjustment of status or consular processing without interruption.
The problem above can occur during any stage of the visa process, even after the interview but before approval is granted. But problems can also occur while the beneficiary is waiting for a visa to become available therefore allowing them to move forward with the interview process. What happens when a petitioner or a beneficiary’s status or category changes after the petition is granted, but before a visa is available? This usually happens in three ways: the petitioner becomes a citizen, the beneficiary “ages out” or the beneficiary gets married.
When these changes occur, petitions automatically convert to a different preference category without the need to re-file. This means that the beneficiary will not lose their spot in line. Sadly, there are also times when a beneficiary can completely lose their ability to obtain a green card because of a change in either their status or their sponsor’s status.
For example, when a legal permanent resident sponsors his spouse, there is a waiting period for a visa. But, if he becomes a citizen during the waiting period for her visa, her category changes and she is automatically eligible for an immediate visa.
Another example is when a minor child is sponsored, but they turn 21 before their visa is available. Unfortunately, their category goes down and they have a longer waiting period for a visa since the government places a higher priority on giving visas to children rather than adults. This is what is called “aging out”.
When the adult child of a LPR or citizen gets married during the waiting period their petition, they are automatically converted to a lower preference category, but their initial priority date is retained despite this automatic conversion. The reverse of this is also true. If a married child gets a divorce (or their spouse dies) during the waiting period, they will automatically be upgraded to a higher preference and their waiting period is shortened.
As you can see, each immigration case is very different with a different outcome depending on the specific facts in the case and relationships in the family. If you have a history similar to anything described above, you should contact an immigration attorney as soon as possible to guide you through your process.
