In our Ask Visalaw.com section of the SIB, attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari’s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.

If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can't answer every question, but if you ask a short question that can be answered concisely, we'll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.

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1) Question:

In 2007, my company filled an I-140 for me under the EB-3 category using a substitution Labor Certification from another employee that had a priority date of September 2006. I have now earned an MBA degree. Can we port the priority date from EB-3 I-140 to the EB-2 I-140, even though it is based upon a substitution Labor Certification?

Answer:

Yes, as long as your I-140 has been approved, you can recapture the 2006 priority date, even though it is based upon a substitution Labor Certification. You will need a new PERM Labor Certification for the EB-2, though.

Also, keep in mind that just because you now have an MBA doesn’t necessarily mean you can now have an EB-2 approved. For an EB-2 to be approved, the position must require a Masters degree or the equivalent as the minimum qualification to be able to perform the duties of the position. Having the degree isn’t enough. The job must also require that degree. So you cannot have an EB-2 approved for the same position. Since you were working in that position before you earned the degree, it is obviously not required to perform the duties of the position. You may be able to have an EB-2 approved for a different position in the company, if an MBA or the equivalent is necessary for the position.

2) Question:

I am a U.S. Permanent Resident. I have an 8-year-old son, who was born out of wedlock. Can I file a petition for my child as his father?

Answer:

Under the immigration laws, a U.S. citizen or Permanent Resident can petition for a child if they fall under one of the following categories:

1) A child born in wedlock;

2) A step-child, but only where the parents married before the child’s 18^th birthday;

3) A child born out of wedlock where the child was legitimated before the child’s 18^th birthday under the laws of the country where either the child or the father resides and the child is in the legal custody of the legitimating parent at the time of the legitimation;

4)  A child born out of wedlock, who has not been legitimated, but who is the natural child of the parent. If the parent is the father, he must also show that an ongoing father-child relationship exists;

5) An adopted child, where the adoption took place before the child’s 16^th birthday, and the child has resided with the adoptive parents at least two years (although there are different rules where the parents adopt two siblings).

A U.S. Permanent Resident can only petition for an unmarried child.

3) Question:

I became a Permanent Resident last year. I got married after I became a Permanent Resident.  I want to petition for my wife and two kids (7 years old and 6 months old) who are in my home country. Do I need a separate I-130 form for each or can I place them all on one?

Answer:

The spouse of a U.S. Permanent Resident can have derivative beneficiaries. So your children can apply for an immigrant visa with your wife based upon the I-130 petition filed for her. Additional I-130 petitions for the children are not required. However, if you naturalize before the children become U.S. Permanent Residents, then you will need to file separate I-130 petitions for the children, since the spouse of a U.S. citizen cannot have derivative beneficiaries.