Who are derivative beneficiaries? When can my spouse and children apply for green cards as derivative beneficiaries? What if I get married after the I-130 petition is approved?

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Let’s analyze the following scenario: your parent is a U.S. citizen, you are older than 21, and your U.S. citizen parent wants to sponsor you for a green card under the F3 family based preference category. The question we often get from our clients is: If my U.S. citizen parent sponsors me for a green card, can my wife and children also get green cards? Can they come with me to the U.S.?

The short answers is yes. Your spouse and children (if they are under the age of 21 and unmarried) can accompany you or follow to join you in the U.S. Your spouse and children will have the same priority date and classification as you.

Please note that this blog post will only discuss derivative beneficiaries in the context of family based immigration.

Who is a principal beneficiary? Who is a derivative beneficiary?

Principal beneficiary: in the scenario above, the principal beneficiary would be the child of a U.S. citizen

Derivative beneficiary: in the scenario above, the derivative beneficiaries would be the spouse and the child of the principal beneficiary. Please note that the derivative beneficiaries do not have an independent basis to apply for a green car – they derive their status from the principal beneficiary.

When can my spouse and children apply for a green card as derivative beneficiaries?

A U.S. citizen/green card holder may sponsor the following family members under the family preference categories:

  • First Preference (F1): unmarried sons and daughters, 21 years of age or older of U.S. citizens
  • Second Preference (F2A):  Spouses and children (unmarried and under and under 21 years of age) of lawful permanent residents
  • Second Preference (F2B):  unmarried sons and daughters, 21 years of age and older, of lawful permanent residents
  • Third Preference (F3): married sons and daughters of U.S. citizens
  • Fourth Preference (F4): brothers and sisters of U.S. citizens (if the U.S. citizen is 21 years of age and older) You could list your spouse and/or children as derivative beneficiaries in all 4 family based preference categories.

I your U.S. citizen/LPR relative sponsor you under any of the 4 family based preference categories, your spouse and/or children may accompany you or follow to join you in the U.S.

Please note that if a U.S. petitioner is sponsoring you under the immediate relative of a U.S. citizen category, he/she will have to file a separate I-130 petition for your spouse and/or children. Please see our blog post discussing this issue when you click here.

What happens if I got married after the I-130 petition was filed and approved? What happens if I had children after the I-130 petition was filed and approved? Can my spouse and children still get green cards?

Your spouse may apply for a green card as a derivative beneficiary and will be accorded your priority date if:

  1. You got married before you adjusted your status in the U.S. or before you were admitted to the U.S. as lawful permanent resident (“LPR”) (if you applied for a green card through Consular Processing), even if you got married after the I-130 was approved;
  2. The marriage continues to exist at the time your spouse files for adjustment of status/enters the U.S. as a lawful permanent resident;
  3. You remain in lawful permanent status at the time your spouse adjusts his/her status/enters the U.S. as a lawful permanent resident.

Your child may apply for a green card as a derivative beneficiary and will be accorded your priority date if:

  1. Your child was born before you adjusted your status/entered the U.S. as a LPR;
  2. Your child is still unmarried and under 21 years old or your child’s CSPA age is under 21;
  3. You remain in a lawful permanent resident status at the time your child files a green card application.

Please note that your child would have been considered acquired prior to you obtaining a green card and would be able to entitled to your priority date even if:

  1. Your natural child was born after your admission to the U.S. as a LPR or after your adjustment of status, and
  2. Your child was born in a marriage and the marriage existed at the time of your admission as LPR or adjustment to lawful permanent status.

Please see our blog post discussing how to maintain your green card when you click here.

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