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WHEN CHILDREN MUST BE LEFT BEHIND
by Michael J. Gurfinkel, Esq.
Dear Atty. Gurfinkel:
I am married with two children, both under
21 years of age. Years ago, I was petitioned by my U.S. citizen
father in the F-3 category (married child of U.S. citizen). The
priority date on my petition is now current, and I am being processed
for my immigrant visa at the U.S. Embassy.
I know that the F-3 petition includes not only
me, but also my spouse and my two minor children. The problem
is that my 19 year old daughter had a baby. We want to be able
to bring the baby with us to the U.S., but we were told that the
baby cannot get a visa. We just can’t leave this infant
in the Philippines. Isn’t there someway by which my daughter
can bring her baby with us to the U.S.?
Very truly yours,
A.G.
Dear A.G.:
Immigration laws set forth those family members
who are included under the various family petitions. Congress
has decided, in making these laws, to draw a line as to which
family member can and cannot be included in a petition. In order
to understand who is, and is not, included under the various family
petitions, we need to define certain immigration terms:
PETITIONER: This is the person
who files the petition. It could be a parent, spouse, U.S. citizen
sibling, or U.S. citizen child over 21 years of age.
PRIMARY BENEFICIARY: This is the person who was
directly petitioned
by the Petitioner (or is named as the Beneficiary
in that petition).
DERIVATIVE BENEFICIARY: Derivative beneficiaries
include the spouse and
unmarried children (under
21 years of age) of a Primary Beneficiary.
OFFSPRING OF DERIVATIVE CHILD: This would include
any babies of Derivative Children. In your case, your daughter’s
baby would be considered an “offspring”.
The following family members are eligible for visas
under the various family categories:
- Immediate Relative
(spouse, parent, child under 21 of U.S. citizen)
A. No derivatives or offspring permitted.
B. Petitioner must file separate immediate relative petitions
for his spouse, each child, and/or each parent
.
- First Preference
(F-1) (unmarried son or daughter (over
21) of U.S. citizen).
A. Primary Beneficiary - the son or daughter who was directly
petitioned.
B. Primary Beneficiary’s unmarried children under 21 years
of age.
C. Note: Since the F-1 category requires that the Primary Beneficiary
be unmarried,
this person cannot, by definition, have a derivative “spouse”.
- Second Preference
(F-2A) (spouse or unmarried child
under 21 years of age of immigrant (green card holder)):
A. Spouse being petitioned.
B. Children under 21 years of age.
C. Note: The Petitioner could either file separate F-2A petitions
for his spouse and each child, or the children could be Derivative
Beneficiaries included under the petition of their petitioned
parent (the spouse of the Petitioner).
- Second Preference
F-2B (Adult, over 21 years of age,
unmarried child of immigrant).
A. Primary Beneficiary. This is the unmarried child over 21
years of age of the immigrant parent.
B. Children under 21 years of age of the Primary Beneficiary.
C. Note: This category would not
include a spouse, because in order to be eligible for F-2B category,
the Primary Beneficiary must remain unmarried
up until the time they receive their green
card in the U.S. (or until they physically set foot on U.S.
soil).
- Third Preference
(Married sons and daughters of U.S. citizens).
A. Primary Beneficiary (the son or daughter who was directly
petitioned by the citizen parent).
B. Spouse of Primary Beneficiary.
C. Unmarried children, under 21 years of age, of Primary Beneficiary.
- Fourth Preference
(Brother and sister of U.S. citizen).
A. Primary Beneficiary. (This is the brother or sister directly
petitioned by a U.S. citizen.)
B. Spouse of Primary Beneficiary.
C. Unmarried children under 21 years of age of Primary Beneficiary.
Unfortunately, in
all cases, offspring of
derivative children
cannot be included under any of the family-based petitions, regardless
of the age of that offspring.
I know that Consuls have to sometimes face the heart-wrenching experience
of telling families that the infant offspring are not eligible for
visas. But the Consuls are simply following the law. If Consuls
were to issue visas to offspring, then they would be breaking the
law. So, it is not the Consul’s decision (or fault) that offspring
have to be left behind; it is simply what the law provides.
In your case, your daughter is faced with a choice of either staying
behind in the Philippines with her child, or coming to America,
getting her green card, and then immediately petitioning her baby
in the F-2A category. Although the backlog for petitions of minor
children of immigrant parents is about 4 or 5 years, at least after
that long wait your entire family (including the baby) will eventually
get to America. In addition, if your daughter really wants to be
with her baby, she can come to America, obtain her green card, and
then apply for a re-entry permit, allowing her to stay outside the
U.S. for about 2 years without being considered to have “abandoned”
her green card.
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