How Children of Visa Applicants Legally Qualify for Derivative Status

Sometimes a foreign national who is coming to the U.S. on a family-based visa or an employment-based visa wants to bring their children as well. These children also may be able to get green cards in some but not all cases. Eligible children must be included on the foreign national’s initial visa petition. This will be Form I-130 for family-based visas and Form I-140 for employment-based visas.

A foreign national child can get an immigrant visa and a green card together with their parent if the child is a lead beneficiary or a derivative beneficiary. A lead beneficiary means that the U.S. sponsor filed a separate petition for the child. A derivative beneficiary means that the child is named on the visa petition for their parent, who is the lead beneficiary in this situation. A foreign national child also may be able to adjust their status to a green card if they are already living in the U.S. under a different legal status.

Qualifying as a Derivative Beneficiary

The first step in proving eligibility as a derivative beneficiary involves showing that the lead beneficiary qualifies for a type of immigrant visa that permits derivative beneficiaries. (These may be not only children but also a spouse and parents.) In other words, the derivative beneficiary gets a green card through their relationship with the foreign national who is the subject of the petition rather than through their relationship with the U.S. sponsor.

Also, the child must be considered a “child” as defined by immigration laws. The child must be unmarried when the application is filed and remain unmarried until they enter the U.S. or get the green card. They also must be under age 21. The definition of a child covers not only biological children but also stepchildren and adopted children in some cases.

Generally, any type of immigrant visa permits derivative beneficiaries except the immediate relative category of visas. (This applies to immediate relatives of U.S. citizens.) If a foreign national parent chooses to get this type of visa, their child still may be able to come to the U.S., but they would need to be the lead beneficiary in a separate petition.

Impact of Naturalization for Green Card Sponsors

You may wonder what would happen if you file a petition as a green card holder that includes derivative beneficiaries, and then you try to become a U.S. citizen. For example, you might try to bring your spouse and their children to the U.S. This would mean that your spouse would be an immediate relative of a U.S. citizen once you naturalize, so their children no longer could be derivative beneficiaries of the same petition. Before becoming a citizen, you might want to explore other ways for your spouse’s children to get green cards.

If the U.S. citizen married their foreign national spouse before the spouse’s children turned 18, they might qualify as immediate relatives because they would be stepchildren of the U.S. citizen. The U.S. citizen could file separate petitions for each child in the immediate relative category. Unfortunately, if the U.S. citizen did not marry the foreign national spouse until the spouse’s children turned 18, the children would not be considered immediate relatives. They might need to wait for the foreign national spouse to get their green card and then file separate petitions on each child’s behalf. This category of visa receives a lower preference and may result in a long wait to enter the U.S.

Last reviewed October 2024