In the complex world of U.S. immigration, understanding which family members can accompany the primary immigrant can be confusing and while spouses and children often have the opportunity to join them in the United States, there are important exceptions and criteria to consider. and this guide will help you understand the intricacies of derivative visas, explaining who can and cannot join the main immigrant, and how to manage this process well.
The Basics of Derivative Visas
When a foreign-born individual becomes eligible for a U.S. green card, either through family sponsorship or employment, immigration laws usually allow them to bring their immediate family members—spouses and children but it’s important to understand the specific criteria that determine eligibility for derivative visas.
Criteria for Spouses and Children
Relationship Definition:
The main immigrant must legally marry their spouse. The child must remain unmarried both when filing the initial immigration petition and when receiving approval for U.S. residence. Additionally, the child must be under 21 years old and can be a biological, adopted, or stepchild.
Immigrant Visa Type:
The spouse or child must be related to the main immigrant, who must hold an immigrant visa that allows for “derivative beneficiaries.” These are family members who can “accompany or follow to join” the main immigrant.
While immediate family members usually can join the main immigrant, there are exceptions. Family members beyond spouses and children, such as parents and siblings, do not have derivative rights.
Types of U.S. Visas That Allow Derivative Beneficiaries
Understanding which types of U.S. visas permit derivative beneficiaries is crucial. The main exception is the “immediate relative” category of family-based visas, which includes U.S. citizens’ parents, spouses, and unmarried children under 21. Derivative beneficiaries are not allowed in this category.
However, there are workarounds in some cases. For instance, if a U.S. citizen wishes to sponsor a foreign-born spouse with children from a previous marriage, those children cannot immigrate as derivatives. They might still be able to immigrate at the same time if a legal “stepchild” relationship exists, involving the U.S. citizen filing separate visa petitions for each child using USCIS Form I-130.
For other family and employment-based visa categories, individuals can bring their unmarried children along if they obtain their visas through specific preference categories. These include:
- Family First Preference (F1): Unmarried sons and daughters of U.S. citizens.
- Family Second Preference (F2): Spouses, minor children, and unmarried sons and daughters (over age 21) of green card holders.
- Third Preference (F3): Married sons and daughters of U.S. citizens.
- Family Fourth Preference (F4): Brothers and sisters of U.S. citizens, and their spouses and minor children.
In these preference categories, the spouse and unmarried children (under 21) of the main immigrant are automatically included as derivative beneficiaries.
Navigating the Immigration Process for Derivative Family Members
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 in the preference categories, the spouse and children can automatically become derivative beneficiaries if they opt to do so. The U.S. petitioner only needs to name them on the initial visa petition to start the process.
However, it’s important to understand that derivative immigrants cannot bring their derivatives, such as parents, brothers, sisters, or grandchildren. These extended family members may have limited ability to obtain immigrant visas, but it may become possible for them after the primary immigrants become U.S. citizens.
Understanding derivative visas is crucial for those seeking to bring their immediate family members to the United States. While there are exceptions and specific criteria to meet, the process can be successfully navigated with the right knowledge and guidance.
If you are considering sponsoring family members or applying for an immigrant visa, it’s advisable to consult with an experienced immigration attorney. They can provide personalized advice and ensure compliance with all applicable laws and regulations.
By gaining clarity on derivative visas, you can make informed decisions and ensure a smoother immigration process for your family members who wish to join you in the United States.
