Which Family Members Can NOT Accompany the Main Immigrant to U.S. (as Derivatives)

When someone becomes eligible for a U.S. green card, whether through family or employment, immigration law usually allows them to bring spouses and children along at the same time. But this is not always the case. Let's look at who can and cannot come along as a "derivative," and what to do when they can't.

Criteria for Spouse or Children to Enter U.S. as Derivative Beneficiaries

For a spouse or child to immigrate to the U.S. as a derivative beneficiary, he or she must:

• meet the U.S. immigration law definition of either a "spouse" (legally married) or a "child" (unmarried both when the initial petition is filed and when approved for U.S. residence and/or entering the U.S. on an immigrant visa; under age 21; and either a biological, adopted, or stepchild), and
• be the spouse or child of someone with 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.

What Types of U.S. Visas Allow Derivative Beneficiaries?

Figuring out whether a relative is eligible for a type of immigrant visa that allows for derivative beneficiaries is relatively simple, because only one immigrant visa category does not do so: the so-called “immediate relative” category of family-based visas. “Immediate relatives” include a U.S. citizen's parents, spouse, and unmarried children under 21 years of age.

So, for instance, if a U.S. citizen wishes to sponsor a spouse who has children from a previous marriage, those children cannot immigrate as derivatives. But they might be able to immigrate at the same time if a stepchild relationship exists, and the U.S. citizen can file separate visa petitions for them (Form I-130) as immediate relatives in their own right.

Similarly, the parents of U.S. citizens cannot bring their own younger children into the U.S. on the same visa petition that their U.S. citizen child over the age of 21 files.

Everyone else in the family- and employment-based visa system is in what's called a "preference category."

So, immigrants can bring their unmarried children along if they get their visa through the family first preference category (unmarried sons and daughters of U.S. citizens), the family second preference category (spouses, minor children, and unmarried sons and daughters age 21 and over of green card holders), the family third preference category (married sons and daughters of U.S. citizens), or the family fourth visa preference category (brothers and sisters of U.S. citizens, and their spouses).

(For more information about these categories, see Green Card Through a U.S. Family Member: Who Qualifies?)

Logistics of How Family Members Can Immigrate as Derivatives

In the preference categories, once an employer or a U.S. citizen or resident submits a visa petition (Form I-140 or I-130) for a foreign-born relative, that person’s spouse and children (unmarried, under the age of 21) will automatically be included in the immigration process (if they wish) as a so-called “derivative” beneficiary.

The U.S. petitioner needs only name them on the initial visa petition to start the process for them. Eventually, however, they will have to submit their own, independent applications for an immigrant visa or green card.

Derivatives Cannot Bring Derivatives

This ability to bring in derivatives does not extend beyond spouses and children. The incoming immigrant cannot, for example, bring in parents, brothers and sisters, or grandchildren. (Though he or she may be able to petition for them eventually.)