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

When a foreign-born person becomes eligible for a U.S. green card through family, employment, or in certain other categories, immigration law usually allows them to bring spouses and children along. But this is not the case in every visa category. Let's look at who can and cannot piggyback on the primary visa and green card applicant's immigration process as a "derivative," and what to do when they can't, yet don't wish to remain behind.

Criteria for Spouse or Children to Enter United States as Derivative Visa Beneficiaries

A spouse or child who wishes to immigrate to the United States as a derivative beneficiary 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 either 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.

Put another way, immediate family members can usually ride along on the main immigrant's petition; but not always, as discussed next. And no family members other than immediate ones can be derivatives. The immigrant's parents and siblings, for example, have no derivative rights.

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 foreign-born spouse who has children from a previous marriage, those children cannot immigrate as derivatives. But there is a workaround, such that they might be able to immigrate at the same time after all. If a legal "stepchild" relationship exists: the U.S. citizen could file separate visa petitions for each of them (USCIS Form I-130), since that would make them immediate relatives in their own right.

Also, the immigrating parents of U.S. citizens cannot bring their own younger children into the United States on the same I-130 visa petition that their U.S. citizen child over the age of 21 filed.

Everyone else in the family- and employment-based visa system (everyone who's not an "immediate relative") is in what's called a "preference category." So, immigrants can bring their spouses and unmarried children along if they get their visa through either:

• the family first preference category (F1; unmarried sons and daughters of U.S. citizens)
• the family second preference category (F2; spouses, minor children, and unmarried sons and daughters age 21 and over of green card holders)
• the family third preference category (F3; married sons and daughters of U.S. citizens), or
• the family fourth visa preference category (F4: 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 to the United States as Derivatives

In the preference categories, once an employer or a U.S. citizen or resident submits a visa petition (USCIS 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 to 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, whether to a U.S. consulate or to USCIS (if they are already in the U.S. and "adjusting status").

Derivative Immigrants Cannot Bring Derivatives of Their Own

This ability to obtain immigrant visas for one's family derivatives does not extend beyond spouses and children. The incoming immigrant cannot, for example, bring in parents, brothers and sisters, or grandchildren. (Though it might be possible to petition for other family members to receive green cards eventually, particularly after the immigrants become U.S. citizens.)

Getting Legal Help

An experienced immigration attorney can help evaluate your family's situation, prepare the appropriate paperwork (or let you know what documents you'll need to gather), draft a cover letter or legal brief, and prepare you for any in-person appearances or interviews before U.S. government officials.