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When children can travel with their parents as derivatives

The Age at Which Children Can Travel to the United States with Their Parents as “Derivatives”!

There are certain situations in which you can use the derivative visa route to migrate and others you cannot.

To obtain lawful permanent resident (LPR) status in the United States, a relative or employer needs to submit a petition displaying that the needed family or working relationship does exist in between “petitioner” (the relative or employer in the United States) and the “beneficiary” (the foreign national) (the person who is seeking an LPR status).

What happens, though, if the beneficiary has children who also require or desire LPR status? When and how will those youngsters be permitted to remain with or rejoin their parents? There is no single answer that applies to all situations. In some cases, children will be included virtually immediately by identifying them on their parent’s application (if they qualified as “derivatives”); in other cases, as discussed in this article, children cannot be added at all.

To submit an initial immigrant visa application, which government form should be utilized?

U.S. Citizenship and Immigration Services (USCIS) has issued two publications available for free download. If it is a family-based case, the petition that initiates the immigration system must be completed on USCIS Form I-130. If it is an employment-based claim, the petition must be filed on USCIS Form I-140.

Beneficiaries from a variety of family backgrounds

At the same time as their parents can immigrate (or potentially “change status,” if they are already in the United States), their children can do so if they are qualified for an immigrant visa and green card as one of the following

A “derivative beneficiary” of a case filed for the parent (in which case the parent is referred to as the “lead beneficiary”), or a “derivative beneficiary” of a petition filed for the child.

If a petition were filed for the kid directly, the child would be considered the “primary beneficiary” in his or her own right.

When Can Children Be Admitted as Derivative Beneficiaries to the United States?

If two prerequisites are met, a kid can be designated as a derivative beneficiary.

First of all, and importantly, the child must fit the legal definition of “child” as defined by United States immigration law. (See I.N.A. 101(b) for more information.) For the most part, this means that the child is under the age of 21, unmarried (not just when the initial petition is filed, but also throughout the process of being granted permission to live in the United States and/or being granted entry into the country on an immigrant visa), and is either a biological, adopted, or stepchild.

To begin with, the parent (the “lead beneficiary”) must be qualified for a kind of immigrant visa that permits for “derived beneficiaries,” which are relatives who have the authority to “accompany or follow to join” their parent. Instead of being based on their association with the petitioner, the legislation allows derivative beneficiaries to get LPR status due to their relationship with the lead beneficiary.

Fortunately, determining whether or not a relative is eligible for a type of immigrant visa that permits for derivative beneficiaries is a straightforward process: Only one of the family-based immigrant visa categories, the so-called “immediate relative” category, does not follow this practice: the “immediate relative” category. This covers the parents, spouse, and unmarried children under 21 of a citizen of the United States. (For additional information on these categories, see Who is Eligible for a Green Card Through a U.S. Family Member?.) As a result, an applicant who is a national of the United States cannot depend on including the kids of his or her parents, partner, or small children.

All left are persons who apply for visas under the first, second, third, or fourth categories of visa preference. In the same immigration application, they are all permitted to take unmarried children. The most important thing to know if a parent is applying for citizenship in the immediate relative category (i.e., petitioned by an American citizen) is that any kids will require separate petitions to be submitted on their behalf. As a result, they will have to demonstrate a direct family relationship with the petitioner in the United States.

In contrast, if the applicant is an employer or an LPR spouse, a single I-140 for the employee or an I-130 for the spouse will include both the parent and the children.

What Happens When an LPR Petitioner Acquires Citizenship in the United States?

As previously stated, an immediate relative of a U.S. citizen is not permitted to bring derivative children with them while immigrating. What should an LPR do if he or she is considering becoming a resident of the United States after filing a petition to sponsor somebody (most likely a spouse) who wishes to bring kids with them as derivatives?

Assuming the LPR is becoming a citizen of the United States, the immigrating spouse would be considered an immediate relation and would not be permitted to bring derivative kids with him or her. Consequently, before proceeding with a petition for nationality in the United States, the LPR and spouse will have to determine whether or not there is another option for the children to apply for an immigrant visa in the United States.

Even if the couple married before the children reached the age of maturity, they might be qualified as U.S. citizen’s stepchildren, even if the children were born in another country. In such a case, the new U.S. citizen would file individual I-130 forms on behalf of the children in question.

However, suppose a kid was 19 at the time of the parent’s marriage. In that case, that kid is not considered a stepchild and would most likely have to wait until the immigrant parent, as a new lawful permanent resident, files an I-130 on the child’s behalf in the second priority category (potentially subject to long waits, due to annual limits on visa allocations).

Contact an attorney for additional information regarding applying for a family-based green card.

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