|  WHO
IS INCLUDED UNDER MY PETITION?
by Michael J. Gurfinkel, Esq.
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
U.S. 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.
2. Unmarried
Son or Daughter (over 21 years of age) of U.S. 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.
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.
4. Married Child
of U.S. Citizen (F-3):
- Spouse: A spouse is
allowed as a derivative beneficiary.
- Children: Children are
allowed to be included as derivative beneficiaries.
5. Brother or
Sister of U.S. Citizen (F-4):
- Spouse: A spouse is
allowed to be included as a derivative beneficiary.
- Children: Children are
allowed to be included as derivative beneficiaries.
6. Employment-Based
(Labor Certification):
- Spouse: A spouse is
allowed to be included as a derivative beneficiary.
- Children: Children are
allowed to be included as derivative beneficiaries.
A person’s marital status and the existence
of children are important not only at the time the petition is
filed, but are also important
at the time a person is being processed
for his or her visa or is adjusting status. If, after the
time that the petition was filed, you got married, your marriage
was terminated (through annulment, death, divorce etc.), or you
had children, you should make sure to determine how the marriage,
or its termination, affects your petition, and whether or not
these family members are, or can be, included with the petition.
In some cases, beneficiaries hide, or do not declare, the existence
of these “after-acquired” family members when being
processed for their visa, by continuing to claim that they are
“single and childless”. However, there are petition
categories in which the existence of these family members would
not affect the person’s
eligibility for a visa, and could even result in these family
members being eligible to be processed for a visa with the primary
beneficiary under the same petition.
If there have been any changes in circumstances
in regards to your marital status or existence of children, you
may wish to seek the advice of a reputable attorney, who can evaluate
your situation, and perhaps assist you in including these new
family members to your petition.
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