A caller on the July 15 Immigration Answer Show had done everything in the right order, until one step undid a piece of it. He came from the Democratic Republic of the Congo on an F-1 in 2014, an employer filed an EB-3 I-140 for him in 2018, it was approved in 2019, and he got his green card. He had listed his daughter, then about four, as a derivative and secured an approved I-824 so she could process an immigrant visa at the consulate. Then he married, and then he naturalized. When his daughter finally reached her interview in Kinshasa, the officer refused to issue the visa.
The officer’s reason, relayed on the call: because the father had become a U.S. citizen, the daughter no longer qualified under the employment petition, and he would need to file a new I-130 for her as the child of a citizen. Attorney James Hacking told the caller the government was probably right.
mic What the Attorney Says
“So, they’re saying that because you became a citizen before she got her immigrant visa to come to the United States, that she fell out of the benefits of your approved I-140.”
That is the rule. A derivative spouse or child rides along on the principal’s immigrant category under INA 203(d), which lets them “accompany or follow to join” the principal. But the benefit is tethered to the principal remaining an immigrant. A derivative cannot obtain permanent residence unless and until the principal does, and once the principal naturalizes, there is no longer an immigrant parent to follow to join, so the employment petition can no longer carry the child. The now-citizen parent has to start over with a family petition.
The fix is not a formality. The father must file a new Form I-130 for the daughter as the child of a U.S. citizen. The approved I-140, and the I-824 that had routed her to the consulate, no longer do anything for her.
There is one silver lining the broadcast did not dwell on. An unmarried child under 21 of a U.S. citizen is an immediate relative with no numerical cap and no wait for a visa number, which can move faster than an EB-3 derivative would have. The catch in this case is geography: the Democratic Republic of the Congo is one of the countries on the 75-country visa restriction, so even a clean I-130 approval may collide with the consular pause before she can be issued a visa.
Hacking floated a repair worth exploring but did not promise it would work.
mic What the Attorney Says
“There is a procedure called nunc pro tunc where they try to fix what happened logistically. I just don’t know if that’s going to work. So, what I would probably do is file a new I-130 for her as the daughter of a US citizen.”
Nunc pro tunc, which means “now for then,” is a request to have an agency treat an action as if it had occurred at an earlier date, here as if the follow-to-join had been completed before the father naturalized. It is discretionary, rarely granted, and not something to count on. Filing the I-130 is the reliable move; pursuing nunc pro tunc in parallel is the long shot that might save time.
The same warning applies to anyone still in the pipeline. If you have an approved petition with a spouse or child abroad who has not yet immigrated, naturalizing first can cost them their place in line rather than help. The safer move is to make sure separate petitions or the follow-to-join processing are complete, or to weigh whether to naturalize at all, before the derivative has their visa in hand. Families juggling undisclosed or later-added children on a green card case run into related timing traps, and the underlying I-140 mechanics that make an employment case portable or fragile are worth understanding before you change your own status.
As Hacking put it after walking the caller through it: you need a lawyer now.