SOME PETITIONS DO NOT INCLUDE CHILDREN
by Michael J. Gurfinkel, Esq.

Immigration laws set forth those family members who are included under the various family petitions.   In making these laws, Congress decided to draw a line as to which family member can and cannot be included in a petition.

The following family members are eligible for visas under the various family categories:

1. Immediate Relative (spouse, parent, child under 21 of U.S. citizen)
   
   A. Only one person is allowed for each immediate relative petition.   A person's spouse, parents, or children under 21, must have their own separate petitions filed.   You cannot have more than one "immediate relative" on a petition.
   
   
2. 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 (Derivative Beneficiary).
   
   C. Note: Since the F-1 category requires that the Primary Beneficiary be unmarried, this person cannot, by definition, have a derivative "spouse".
   
   
3. 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.
   
   
4. 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. Primary Beneficiary's unmarried children under 21 years of age (The Petitioner's grandchildren).
   
   
5. 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.
   
   
6. 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 (i.e. babies 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 infant offspring of derivative beneficiaries are not eligible for visas, or that a child must be left behind.   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.

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