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I-130 Will my son be a Derivative Beneficiary on Same I-130.

Orlando, FL |

Hi, I am Green card holder and in process of filing for my wife and 1 yr old sun. I am bit confused as I am getting conflicting advice regarding do I need to file separate I-130 for my 1 yrs old son. It is my understanding that my son will be a derivative beneficiary and his name should be included in question 17 C ( List husband/wife all children of your relative) and does not require a separate I-130.
Does my son need a separate I-130 or he should be included in same I-130 of my wife

Attorney Answers 7

Posted

He is an immediate relative so you will ned to file a separate petition for him

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Mary Carmen Remigio Madrid-Crost

Mary Carmen Remigio Madrid-Crost

Posted

The petitioner is a green card holder. Isn't the child a derivative beneficiary?

Posted

You have to file separate I 130 petition for your son.

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7 comments

Mary Carmen Remigio Madrid-Crost

Mary Carmen Remigio Madrid-Crost

Posted

The petitioner is a green card holder. Isn't the child a derivative beneficiary?

Ilona Dzhamgarova

Ilona Dzhamgarova

Posted

Separate I 130 petition must be filed because child is immediate relative

Mary Carmen Remigio Madrid-Crost

Mary Carmen Remigio Madrid-Crost

Posted

The child would fall under F-2A classification because the father is only a lawful permanent resident. If the father were a U.S. citizen, the cihld will then be considered an immediate relative, in which case, the concept of derivative beneficiary would not apply and a separate I-130 petition would need to be filed.

Ilona Dzhamgarova

Ilona Dzhamgarova

Posted

I 130 petition must be filed for child even if petitioner is green card holder.

Ilona Dzhamgarova

Ilona Dzhamgarova

Posted

because when petitioner will become naturalize only one principal beneficiary will remain under original petitioner

Mary Carmen Remigio Madrid-Crost

Mary Carmen Remigio Madrid-Crost

Posted

Please see the following excerpt from the Foreign Affairs Manual about derivative beneficiaries, which also touches upon immediate relatives – 9 FAM 42.31 N2 DERIVATIVE STATUS FOR SPOUSE AND CHILD(REN) (TL:VISA-192; 05-14-1999) The spouse and unmarried children of an alien beneficiary are entitled to the same preference status, and the same priority date, as the principal alien. 9 FAM 42.31 N2.2 Filing Petitions for Derivative Aliens (CT:VISA-1575; 10-04-2010) Careful attention should be paid to cases where a "derivative" beneficiary's immigration status is likely to change. For instance, when a child turns 21, he or she is no longer considered a "child" under the INA. The Child Status Protection Act (CSPA) may protect the derivative from “aging out” and losing the ability to derive status from the "principal beneficiary" of the petition. (See 9 FAM 42.42 N12 for guidance on CSPA calculations.) Likewise, if the petitioner intends to become a U.S. citizen before his wife and children have immigrated to the United States, he should file separate immigrant visa (IV) petitions for any children who are currently "deriving" their immigration status through the mother. That way, when the petitioner is naturalized, the petition according second preference status to his wife, as well as those petitions according second preference status to any children, will be converted automatically to accord the family "immediate relative" status. If, however, the petitioner does not file separate petitions for his children before his naturalization, the children will lose their "derivative" status upon the father's naturalization. The father will then have to file new petitions on their behalf to accord them "immediate relative" immigrant status. The petitioner has the option to file one or separate petitions. Filing separate petitions is not a “must”. The petitioner here has the option to file only one petition and include his son in 17C of the form I-130. If he remains a permanent resident when their priority date is reached, the minor child can immigrate with the wife. I have highlighted above the scenario wherein the petitioner becomes a U.S. citizen and the original F2A petition is automatically converted into an immediate relative petition. In this situation, the child would not be able to immigrate with the wife if only one petition was filed (and he not file a separate petition for his minor child) because the concept of derivative beneficiary does not exist with respect to an immediate relative petition filed by a U.S. citizen. There has been a rather quick progression of the priority dates for F2A petitions. We have also seen visa retrogressions in the past. If the permanent resident petitioner here has recently obtained his green card, entailing a lengthy waiting period before becoming eligible for naturalization or if the petitioner opts not to become a U.S. citizen, it is my opinion that the child’s eligibility to immigrate with his mother (the petitioner’s wife) will not be jeopardized by filing only one petition for his wife and including his minor son in the same petition. So, the petitioner is not required, but has the option, to file two petitions. He also has the option to file only one petition.

Ilona Dzhamgarova

Ilona Dzhamgarova

Posted

Thank you i know this.

Posted

You need a separate petition for him.

You should retain an experienced immigration lawyer, whether myself or one of my colleagues, to review all the facts, advise you, and handle the case.

J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.

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Mary Carmen Remigio Madrid-Crost

Mary Carmen Remigio Madrid-Crost

Posted

The petitioner is a green card holder. Isn't the child a derivative beneficiary?

Posted

Agree, he needs a separate petition as an immediate family member.

Answers on AVVO do not constitute legal advice and do not form attorney-client relationship. Always consult an attorney for a legal advice.

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Mary Carmen Remigio Madrid-Crost

Mary Carmen Remigio Madrid-Crost

Posted

The petitioner is a green card holder. Isn't the child a derivative beneficiary?

Posted

I agree with my colleagues, you must file a separate I-130 for your son.

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Mary Carmen Remigio Madrid-Crost

Mary Carmen Remigio Madrid-Crost

Posted

The petitioner is a green card holder. Isn't the child a derivative beneficiary?

Posted

Its your choice.
It is advisable to retain an Immigration Lawyer to represent you and explain the process to you.
Goodluck.

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Posted

As a green card holder petitioner, your family are not immediate relatives. So you are ok with one petition unless you will naturalize before they enter the us. At that time everyone will need a separate petition.

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Form I-130 (alien relative) topics

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