Navigating U.S. immigration law can be complex, especially when it comes to understanding what happens when a relative has children after the I-130 visa petition is approved. Can these children still immigrate with their parents? In this children born After I-130 Approved guide, we will look at the details and requirements involved.
The Basics
Save time and paperwork! When filing a family preference visa for a relative as a U.S. citizen or green card holder, include your children’s names directly on your petition instead of filing separate I-130 petitions for each child.
After I-130 Approval: Applying for U.S. Entry Visas
To immigrate together, all family members, including dependents with derivative status, need individual U.S. entry visas. However, if you have children born after your petition’s approval who weren’t initially listed, additional paperwork will be required for them to join you.
Adding Newborn Children as Derivatives
It’s common for families to wait several years for a visa due to annual quotas on “family preference” visas. During this wait, new children may be born. If a child is born outside the U.S. after the I-130 is approved, you don’t need to file a new one for the child. Any child born before your relative is admitted to the U.S. can obtain a visa with the family.
Adding Stepchildren and Adopted Children as Derivatives
If your relative marries someone with children after the petition is filed, these stepchildren can also immigrate, provided they were under 18 at the time of the marriage. If your relative adopts a child, the child can join the immigration process if the adoption occurred before the child turned 16, or 18 if the child is a sibling of another adopted child and if the child has lived with the adoptive parents for at least two years.
Adding Children Born Out of Wedlock as Derivatives
Children born out of wedlock can also be included If your relative is the natural mother, the child can immigrate with her. If your relative is the father, the child can immigrate if there is a genuine parent-child relationship. If not, the child must be legitimized according to the laws of the child’s or father’s residence before the child turns 18.
Navigating Potential Challenges While Waiting for Visas
Navigating the challenges of waiting for visas, particularly for children born after an I-130 petition is approved, can be complex. Here’s a comprehensive overview of the situation, including potential challenges and strategies to manage them effectively.
Overview of Derivative Status
When a U.S. citizen or lawful permanent resident files an I-130 petition for a relative, any children born after the approval can often benefit from “derivative” status. This means they can immigrate alongside their parent without needing a separate I-130 petition, provided certain conditions are met:
- Eligibility: Children born after the I-130 approval do not require a new petition if they are born before their parent is admitted to the U.S. They can obtain a visa with the family during consular processing.
- Documentation: To immigrate together, all family members, including those with derivative status, need individual U.S. entry visas. Proof of birth (like a government-issued birth certificate) must be provided when applying for visas.
Potential Challenges
1. Visa Wait Times
- Long Processing Delays: Family preference categories often have long wait times due to annual visa caps. Children may be born during this waiting period, which can complicate planning.
- Priority Dates: The priority date (the date USCIS receives the I-130) determines when a visa becomes available. New children added to the process will not affect the priority date but will need to wait for their turn in line.
2. Aging Out
- Child Status Protection Act (CSPA): If a child turns 21 while waiting for their visa, they may “age out,” losing eligibility under their parent’s petition unless protections under CSPA apply, which can sometimes allow them to retain eligibility despite aging out.
3. Marriage Before Visa Approval
- If a child marries before obtaining their visa, they lose their status as a “child” under immigration law and must seek alternative pathways to immigration.
4. Changes in Family Circumstances
- Naturalization: If the petitioner becomes a U.S. citizen after filing the I-130, their spouse and children may reclassify as “immediate relatives,” allowing for faster processing. However, new petitions must be filed for any children born after the initial application.
- Death or Divorce: The death of the petitioner before visas are secured terminates eligibility for derivative children. Divorce may affect stepchildren’s eligibility unless they can prove an ongoing relationship with the petitioner.
5. Legal Complications
- Children Born Out of Wedlock: If a child is born out of wedlock, different rules apply regarding eligibility based on whether the parent is the mother or father and whether there is a legitimate parent-child relationship.
Strategies for Managing Challenges
- Early Application:
- Apply as early as possible to allow ample time for processing and any unforeseen delays.
- Stay Informed:
- Regularly check the status of your application and stay updated on any changes in visa regulations or processing times through official channels.
- Consult Legal Assistance:
- Navigating these complexities can be overwhelming; consulting an experienced immigration attorney can provide invaluable guidance tailored to your specific situation.
- Documentation Preparation:
- Ensure all necessary documentation is prepared ahead of time to avoid delays caused by missing information.
- Backup Plans:
- Always have contingency plans in case of delays or complications due to changes in family circumstances or immigration status.
Seeking Legal Assistance
Dealing with these complexities can be overwhelming. Consulting an experienced immigration attorney can provide invaluable guidance and support to ensure a smooth immigration journey for your family.
Understanding the laws and processes involved when children are born after an I-130 petition is approved is essential. By effectively navigating these complexities, you can ensure that your entire family can embark on their journey to the United States with confidence and clarity.
How Law and Visas Can Help?
At Law and Visas, our team of expert immigration consultants is here to make your children’s travel to the US straightforward and successful. Whether you’re applying for an Immediate Relative Visa (IR-2) or Family Preference Visa (F2A), 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 their children need to the US. Call us today at +234 812 5505 986 to learn how we can assist you.
