Hi I am a permanent resident (green card holder) and have a approved petition I 130 for my spouse and 2 yrs old son both residing out side of US. I have been given a conflicting information that I should have filled separate I 130 for my 2 yrs old son but some are saying that he does qualify for derivative visa with my spouse. please help what can I do? When I filled I 130 I did clearly mention on my covering letter that this petition is for my spouse and minor child and also mention his details in question 17 of I 130. His birth certificate was also submitted with the petition.
Your two-year-old qualifies as a derivative beneficiary. No separate I-130 is required.
Please click the link at the very bottom for additional information.
Carl Shusterman, Esq.
Former INS Trial Attorney (1976-82)
Board Certified Immigration Attorney (1986 - Present)
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Web: www.shusterman.com (English)
U.S. immigration law is often a funny creature. When dealing with "immediate relatives" as defined in immigration law, separate petitions must be filed. However, spouse and child of a U.S. Legal Permanent Resident, unlike spouse and child of a U.S. Citizen, are not considered "immediate relatives" as contemplated by U.S. immigration law. In other words, your son qualifies as a derivative on your single I-1-130 petition for your spouse. If you were a U.S. Citizen, then you would have needed to file separate petitions.
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