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 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
A child can become a beneficiary if they meet two key requirements:
Legal Definition of Child:
Under U.S. immigration law, a child must be unmarried, under 21, and either a biological, adopted or step-child.
Eligibility of the Parent:
The parent who is the lead beneficiary must qualify for an immigrant visa that allows derivative beneficiaries. This means relatives can get LPR status based on their relationship with the lead beneficiary rather than the petitioner.
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.
Conclusion
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 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.
