Children as Derivative Beneficiaries of Green Card Applicants – What You Need to Know

Jun 4, 2015 | Derivative

As a Miami immigration lawyer, I have helped numerous clients obtain their green cards (U.S. lawful permanent resident (LPR) status). In order to obtain a green card, a relative or employer must submit a visa petition.

The person who submits the application on behalf of the applicant is called the “petitioner.” The person who receives the immigration benefit (in this case, a green card), called the “beneficiary.”

In some cases, the beneficiary will have children who will also need or want a green card. Can these children be named in their parent’s visa petition? Or, are they excluded? This all depends.

Can my child/children immigrate at the same time as me?
Yes, but only if your child is eligible for an immigrant visa as either a:

  • “derivative beneficiary” of a visa petition that was filed for his or her parent, or;
  • a “lead beneficiary” in his or her own right, if a petition was filed for the child directly.

If you do not know which category your child falls into, it would be in your best interests to speak with a Miami immigration lawyer to discuss your options.

How does my child immigrate as a derivative beneficiary?
In order for your child to immigrate as a derivative beneficiary, two requirements must be met:

  • First, your child has to qualify as a “child” under U.S. immigration law. This means that your child must be unmarried, under age 21, and either a biological, adopted, or step-child.
  • Second, you must be eligible for a type of immigrant visa that allows for “derivative beneficiaries.” A derivative beneficiary is a relative who has the right to “accompany or follow to join” the lead beneficiary.

Does my visa application allow for derivative beneficiaries?
There is only one immigrant visa category does not allow for derivative beneficiaries, and that is the “immediate relative” category.

The “immediate relative” category includes a U.S. citizen’s parents, spouse, and unmarried children under 21 years of age. For applicants who are adjusting under the immediate relative category, their children will need separate visa petitions filed on their behalf. As such, they will  need to establish a direct family relationship with the petitioner.

However, if the applicant is adjusting under if an employer or through his/her LPR spouse, in most of these cases, a single I-140 for the employee or I-130 for the spouse will suffice for both the parent and children. Again, if you have any questions, do not guess. Consult with a Miami immigration lawyer to ensure that you understand all available options.

If you would like more information on your children applying as derivative beneficiaries, please contact Miami immigration lawyer The Law Office of Tatiane M. Silva, P.A., Esq. at (305) 895-2500 or visit our website at tmsilvalaw.com.