The usual first step to getting U.S. lawful permanent resident (LPR) status is that a relative or employer completes a petition showing that the necessary family or employment relationship exists between the "petitioner" (the U.S. relative or employer) and the "beneficiary" (the person who wants LPR status). They submit that petition to the U.S. government, and the immigration process proceeds from there.
But what if the foreign-born beneficiary has children who also need or want U.S. LPR status? When and how can those children stay with or join their immigrating parents? The answer is not the same in every case. Sometimes, children of an immigrant can be included almost automatically, by naming them on their parent's petition (if they qualify as "derivatives"); and sometimes not, as described in this article.
The petition that starts the immigration process must ordinarily be submitted on either:
These forms are published by U.S. Citizenship and Immigration Services (USCIS) and available for free download (but there's usually a fee to file them).
Children can immigrate (or potentially "adjust status," within the U.S.) at the same time as a parent if the child is eligible for an immigrant visa and green card as either a:
A child can be a derivative beneficiary if two requirements are met.
First, the child must meet the legal definition of "child" under U.S. immigration law. (See I.N.A. § 101(b).) Broadly speaking, this means the child is unmarried (not just when the initial petition is filed, but all the way through approval for U.S. residence and/or entering the U.S. on an immigrant visa), under age 21, and either a biological, adopted, or step-child.
Second, the parent ("lead beneficiary") must be eligible for a type of immigrant visa that allows for "derivative beneficiaries," meaning relatives who have the right to "accompany or follow to join" the lead beneficiary. The law allows derivative beneficiaries to receive LPR status because of their relationship with the lead beneficiary rather than their relationship with the petitioner.
Fortunately, figuring out whether a relative is eligible for a type of immigrant visa that allows for derivative beneficiaries is in most cases simple: Only one of the family-based immigrant visa categories does not do so: the so-called "immediate relative" category. This includes a U.S. citizen's parents, spouse, and unmarried children under 21 years of age. (For more information about these categories, see Green Card Through a U.S. Family Member: Who Qualifies?). Thus U.S. citizen petitioners cannot count on including the children of their parents, spouse, or young children.
But there are exceptions: in widow/widower of U.S. citizen cases where the immigrant self-petitions on Form I-360, the children (unmarried) can be claimed as derivative beneficiaries. The same essentially goes for children of a self-petitioning abused spouse, but this is a complex legal area, so see an attorney for a full analysis. (See 8 CFR § 204.2.)
People who immigrate in the first, second, third, or fourth visa preference categories are NOT immediate relatives. That means all of them can bring unmarried children along as part of the same immigration petition. The key thing to understand if a parent is immigrating in an immediate relative category (petitioned by a U.S. citizen) is that any children will need separate petitions filed on their behalf, and therefore will need to establish a direct family relationship with the U.S. petitioner. Meanwhile, if an employer or LPR spouse is the petitioner, a single I-140 for the employee or I-130 for the spouse will cover both parent and children.
As mentioned above, an immediate relative of a U.S. citizen cannot bring derivative children when immigrating. But what if an LPR is thinking about becoming a U.S. citizen after having filed a petition to sponsor someone (most likely a spouse) who wants to bring children as derivatives?
If, in this example, the LPR becomes a U.S. citizen, the immigrating spouse would become an immediate relative and would not be able to bring derivative children. Therefore, before going forward with an application for U.S. citizenship, the LPR and spouse would first need to figure out whether another way exists for the children to qualify for an immigrant visa.
The children might still qualify if, for example, the couple got married before the children turned 18, so that they qualify directly as the U.S. citizen's stepchild. In such a situation, the new U.S. citizen could simply file separate I-130s on each child's behalf. Then again, if a child was 19 when the parents got married, that child is not a stepchild, and would most likely have to wait until the immigrating parent, as a new lawful permanent resident, files an I-130 on the child's behalf in the second preference category (potentially subject to long waits, due to annual limits on visa allocations).
This is a complex area of immigration law, and timing can be critical. See Getting a Family-Based Green Card or consult an attorney for more information.
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