!Family accompany immigrant to U.S.

When a foreign-born person becomes eligible for a U.S. green card through family, employment, or in any of certain other categories, immigration law usually allows them to bring their spouse and children along. But this is not the case in every visa category. Let's focus in particular on family-based immigration, and look at who can and cannot piggyback on the primary visa and green card applicant's immigration process as a "derivative." We'll also suggest alternative strategies; that is, what to do when a close family member doesn't qualify as a derivative, yet would also like to move to the United States.

In This Article

Criteria for Spouse or Children to Enter U.S. as Derivative Visa Beneficiaries

A spouse or child who wishes to immigrate to the United States as a derivative beneficiary (tagging along on someone else's family-based visa application) must:

  • meet the U.S. immigration law definition of either a "spouse" (legally married) or a "child" (unmarried both when the initial petition is filed and when approved for U.S. residence and/or entering the U.S. on an immigrant visa, under age 21, and either a biological, adopted, or stepchild), and
  • be either the spouse or child of someone with a type of immigrant visa that allows for “derivative beneficiaries,” meaning that relatives have the right to “accompany or follow to join” the lead beneficiary.

Put another way, family members can usually ride along on the main immigrant's petition; but not always, as discussed next. And no family members other than spouses and children can be derivatives. The immigrant's parents and siblings, for example, have no derivative rights.

When an Immigrant’s Family Members Can Immigrate With Them

Main Immigrant Petitioned in a Preference Category

Who Can Get a Derivative Immigrant Visa

✔ Legal Spouse

✔ Unmarried Children Under 21

Who Cannot Get a Derivative Immigrant Visa

✖ Parents

✖ Married Children

✖ Siblings

✖ Grandparents

What Types of U.S. Visas Allow Derivative Beneficiaries?

Let's start with a clear-cut rule: only one family-immigrant visa category does not allow for derivative beneficiaries. It's the so-called “immediate relative” category. “Immediate relatives” include a U.S. citizen's parents, spouse, and unmarried children under 21 years of age. (Foreign-born relatives of a permanent resident/green card holder are never considered "immediate relatives" under this narrow legal definition.)

So, for instance, if a U.S. citizen wishes to sponsor a foreign-born spouse (their "immediate relative") and the spouse has children from a previous marriage, those children cannot immigrate as derivatives. (Don't look for logic here, that's just how immigration law works.) But there is a workaround, such that the children might be able to immigrate at the same time after all. If a legal "stepchild" relationship exists, the U.S. citizen could file separate visa petitions for each of them (on USCIS Form I-130), since that would make them immediate relatives in their own right. Unfortunately, not all children will qualify as stepchildren; it works only if the stepchild was under the age of 18 when the new marriage occurred.

Also, because of this immediate-relative rule, the immigrating parents of U.S. citizens cannot bring their own younger children into the United States on the same I-130 visa petition that their U.S. citizen child over the age of 21 filed for them. There's no easy workaround here; the U.S. citizen can file separate I-130s for siblings, but the wait for an available visa is likely to be 20 years or more (in the fourth preference category, described below). Or the immigrating parents can, once they've become permanent residents, petition for their children; but the children will be subject to waits for an available visa as well (they'd be in the second preference category, also described below).

Every primary applicant who's not an "immediate relative" is going to be in what's called a "preference category." Such immigrants can bring their spouses and unmarried children along if they get their visa through either:

  • the family first preference category (F1; unmarried sons and daughters of U.S. citizens)
  • the family second preference category (F2; spouses, minor children, and unmarried sons and daughters age 21 and over of green card holders)
  • the family third preference category (F3; married sons and daughters of U.S. citizens), or
  • the family fourth visa preference category (F4: brothers and sisters of U.S. citizens and their spouses).

(For more information about these categories, see Green Card Through a U.S. Family Member: Who Qualifies?)

Logistics of How Family Members Can Immigrate to the United States as Derivatives

In the preference categories, once an employer or a U.S. citizen or resident submits a visa petition (USCIS Form I-140 or I-130) for a foreign-born relative, that person’s spouse and children (unmarried, under the age of 21) will automatically be included in the immigration process, if they wish, as a so-called “derivative” beneficiary.

The U.S. petitioner needs only to name them on the initial visa petition to start the process for them. Eventually, however, they will have to submit their own, independent applications for an immigrant visa or green card, whether to a U.S. consulate or to USCIS (if they are already in the U.S. and "adjusting status").

Derivative Immigrants Cannot Bring Derivatives of Their Own

This ability to obtain immigrant visas for one's family derivatives does not extend beyond spouses and children. The incoming immigrant cannot, for example, bring in parents, brothers and sisters, or grandchildren. However, as alluded to above, it might be possible for the new immigrants to eventually petition for other family members to receive green cards, particularly after the immigrants become U.S. citizens themselves.

Getting Legal Help

An experienced immigration attorney can help evaluate your family's situation, prepare the appropriate immigration paperwork (or let you know what documents you'll need to gather), draft a cover letter or legal brief, and prepare you for any in-person appearances or interviews before U.S. government officials.