An 'approved' relative petition does not always give immediate legal and/or working status

Many people think that an approved relative petition means they are immediately in legal status, enabling them to stay, live, and work in the US. For example, soon after the petition is filed, the person receives a notice from the USCIS stating, “The above petition has been approved.” The family gets excited, thinking that if the family member is in the Philippines, he or she will soon be able to join them. Or, if the petitioned family member is already in the US, he or she can begin working immediately. After all, they have an approved petition. Right?

By law, only the spouse, minor child, or parent of a US citizen (“immediate relative”) are “immediately” eligible for their green cards. For all other family petitions, there is a backlog or waiting period for green cards:

1. F-1 — single adult child of citizen

2. F-2A — spouse and/or minor child of green card holder

3. F-2B — single, adult child of green card holder

4. F-3 — married child of citizen

5. F-4 — brother/sister of citizen

This waiting period can be anywhere from 4 to 30 years, depending on:

1. the status of the petitioner (immigrant or US citizen),

2. the age of the beneficiary (under or over 21),

3. marital status (married/unmarried) of the person being petitioned, and

4. the relationship of the family member to the petitioner (husband/wife, parent/child, brother/sister).

Just because a person has an approved petition, does not mean that he or she is in immediate legal and/or working status. In fact, at the back of the Approval Notice, it specifically states:

“The filing of an application or petition does not in itself allow a person to enter the United States and does not confer any other right or benefit.”

Approval of an immigrant petition does not convey any right or status.  The approved petition simply establishes a basis upon which the person you filed for can apply for an immigrant or fiancé (e) visa or for adjustment of status.

A person is not guaranteed issuance of a visa or a grant of adjustment simply because this petition is approved. Those processes look at additional criteria.” (Emphasis added)

If you or a family member are under a family petition and have been impatient with the long waiting time involved for the visa to become available, you may wish to consider other ways for the family member to be petitioned, such as through employer sponsorship (called Labor Certification/PERM). Remember, if a person has already been petitioned by a relative, he or she can still be petitioned for a green card through as many different ways as are legitimately available, all at the same time. (In addition, under Section 245(i), if a petition was filed for you before April 30, 2001, it is possible for you to be interviewed in the US for a green card (adjust status) even under a new Labor Certification/PERM application filed by an employer after the April 30, 2001 deadline, since 245(i) eligibility is “transferable”.) You should see a reputable attorney, who can advise you and your family of possible faster ways for the relative to immigrate to the US.

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