Navigating U.S. immigration is a complex journey, especially for families aiming to secure lawful permanent resident status together. This process typically involves a primary applicant, known as the petitioner, and their relatives who hope to join them. However, not all family members can immigrate at the same time, and the rules can be strict. In this derivative immigration guide, we’ll explain when and how children can immigrate to the U.S. with their parents as derivatives.
Starting the Immigrant Visa Process
A relative or employer must file a petition to establish the necessary family or employment relationship between the petitioner and the beneficiary. The right form depends on the type of application:
- I-130: For family-based cases.
- I-140: For employment-based cases.
- I-360: For special immigrants, widows of U.S. citizens, and VAWA cases.
They were published by U.S. Citizenship and Immigration Services and are important for starting the immigration journey. The process becomes more nuanced when children are involved.
Children as Derivative Beneficiaries in U.S. Immigration
In U.S. immigration law, children can qualify as derivative beneficiaries, allowing them to immigrate along with their parents or join them later under specific conditions. This concept is crucial for families seeking to reunite in the United States.
Definition and Eligibility for Derivative Immigration
To qualify as a derivative beneficiary, two primary criteria must be met:
- Legal Definition of “Child”:
- The child must be unmarried and under the age of 21 at the time of application.
- The definition encompasses biological children, stepchildren, and adopted children, provided they meet the age and marital status requirements.
- Eligibility of the Lead Beneficiary:
- The parent (lead beneficiary) must be applying for an immigrant visa that allows for derivative beneficiaries. Most visa categories permit this, except for the immediate relative category (which includes spouses, parents, and unmarried children under 21 of U.S. citizens) where children cannot derive status from their parent’s petition.
Application Process
- Filing Petitions:
- For family-based immigration, Form I-130 (Petition for Alien Relative) must be filed by a U.S. citizen or lawful permanent resident.
- For employment-based immigration, Form I-140 (Immigrant Petition for Alien Worker) is used.
- Children must be named in these petitions to qualify as derivative beneficiaries.
- Adjustment of Status:
- If children are already in the U.S., they can apply to adjust their status using Form I-485 (Application to Register Permanent Residence or Adjust Status). This can occur concurrently with their parent’s application if eligible.
- Following-to-Join Provision:
- If children do not enter the U.S. simultaneously with their parents, they may still immigrate later through a “following-to-join” provision, which allows them to apply for a visa after the principal applicant has adjusted their status or received their green card.
Special Considerations for Derivative Immigration
Age-Out Protection: The Child Status Protection Act (CSPA) provides protections for children who turn 21 during the immigration process, allowing them to retain eligibility under certain circumstances.
Naturalization Impact: If a parent naturalizes after filing a petition that includes derivative beneficiaries, those children may lose their derivative status unless separate petitions are filed for them as immediate relatives.
Exceptions for Immediate Relatives
Immediate relatives of U.S. citizens, such as parents, spouses, and unmarried children under 21, usually cannot include children as derivative beneficiaries. However, there are notable exceptions:
Widow/Widower Cases:
If an immigrant self-petitions on Form I-360, their unmarried children can be claimed as derivative beneficiaries.
Abused Spouse Cases:
For children of a self-petitioning abused spouse, similar rules apply, though this area of law is complex and requires legal consultation.
Visa Preference Categories
Individuals immigrating under the first, second, third, or fourth visa preference categories are not considered immediate relatives. This distinction is crucial as it determines whether children can accompany their parents on the same immigration petition.
Immediate Relative Category (IR):
Includes U.S. citizen’s parents, spouses, and unmarried children under 21. Children cannot be included as derivatives in this category.
Other Preference Categories:
All other preference categories allow unmarried children to be part of the same immigration petition as their parents.
Transition from LPR to U.S. Citizenship
The transition from LPR to U.S. citizenship can affect the ability of children to join their parents as derivative beneficiaries. For instance, an LPR who has filed a petition to sponsor their spouse might consider becoming a U.S. citizen. However, this would reclassify the spouse as an immediate relative, making it impossible for them to include derivative children.
To address this, the LPR and spouse must find alternative ways for the children to qualify for an immigrant visa. If the couple married before the children turned 18, the children might qualify as stepchildren of the U.S. citizen. Separate I-130 petitions could then be filed for each child. If the child was 19 or older when the parents married, they would need to wait for the immigrating parent (now an LPR) to file an I-130 for them in the second preference category, subject to annual visa limits.
Understanding when and how children can immigrate as derivatives of their parents is crucial in the U.S. immigration process. This involves navigating various visa categories, legal definitions, and potential exceptions. By following this derivative immigration guide, you can make informed decisions while pursuing LPR status in the United States. For personalized advice and expert assistance, consider consulting an immigration attorney to ensure a smooth and successful immigration journey.
How Law and Visas Can Help?
At Law and Visas, our team of expert immigration consultants is here to make your children joining you in the US straightforward and successful. Whether you’re applying for a Business Visa or an Immigrant Investor Visa, we handle every step—from preparing your application to gathering the required documents.
Our immigration lawyer consultants and Lawyers ensure that your application meets the highest standards, with no details missed. We’ll also keep you informed throughout the process, coordinating with the immigration office or embassy on your behalf.
Law and Visas has a strong record of helping clients secure the visas/permits they need for their children to join in the US. Call us today at +234 812 5505 986 to learn how we can assist you.
