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 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.
Understanding Derivative Status
In family immigration, children benefit from “derivative” status. This means their eligibility to immigrate comes directly from their parent’s petition, allowing them to move to the United States with their family without a separate application.
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
Several factors can impact a child’s visa eligibility, even though children born after approval do not require refiling of the I-130.
Naturalization:
If you become a U.S. citizen after the I-130 is approved, your spouse and children reclassify as “immediate relatives.” While this means faster visa processing, you will need to file new I-130 petitions for each child.
Death or Divorce:
If your relative (the parent) dies before the family secures visas, the child’s eligibility ends. If there’s a divorce, natural children remain unaffected, but stepchildren may lose eligibility unless they can prove an ongoing relationship.
Aging Out:
Children may age out if the visa wait is long. The Child Status Protection Act (CSPA) can help some children retain their eligibility despite turning 21.
Marriage:
If a child marries before securing a visa, they lose their “child” status and visa eligibility. It’s crucial to advise them to wait until after they complete the immigration process.
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.
