Who is included under my petition? Part 1

Dear Atty. Gurfinkel:

Many years ago, I was petitioned by my sister when I was young and single. While waiting for my priority date to become current, I got married and had children.

My priority date is now current and I am about to be processed for my visa. Would my kids and spouse be able to immigrate with me even though they are not listed in the petition?

Very truly yours,

D.M.

Dear D.M.:

Some petitions allow a person to “add on” or include certain immediate family members whether or not those family members were named in the original petition. These family members (such as spouses or children), called “derivative beneficiaries”, may not have even been around at the time the petition was filed. 

The following are the various petition categories, indicating whether or not a “later acquired” spouse or child can be included or added on to the petition:

1. Immediate Relative (Spouse, Parent or Child [under 21 years of age]) of US Citizen (IR):

Derivative beneficiaries are not allowed for Immediate Relatives. Each Immediate Relative must have his or her own petition, separately filed on his or her behalf. In other words, for immediate relatives, only one person per petition/no derivatives. That is why if a US citizen petitions his parents, he must file two petitions: one for his father, and one for his mother. If an American citizen has five children, he must file five separate petitions. Therefore, if an American petitions, let us say his 18-year old daughter who has an illegitimate child (the grandchild of the US citizen petitioner), that grandchild would not be included under the 18-year old petition. This is because one person per petition. Similarly, if an adult US citizen petitions her mother, who has an eight-year old child (a younger sister of the US citizen petitioner), that eight-year old also will not be included under that immediate relative petition, because only one person per petition. No derivatives. 

2. Unmarried Son or Daughter (over 21 years of age) of US citizen (F-1):

 — Spouse: Obviously, an “unmarried” child should not have a spouse. If the primary beneficiary marries, the petition is converted to F-3.

— Children: Children are allowed to be included as derivative beneficiaries, even if illegitimate.

3. Minor or Adult Single Child of Greencard-holder (F-2A or F-2B):

— Spouse: A spouse is not allowed as a derivative beneficiary. If the primary beneficiary marries, the petition is considered void.  

— Children: Children are allowed to be included as derivative beneficiaries, even if illegitimate.

In a future article, I will discuss more petitions and who is included under those petitions.

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