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I am permanent resident and and have a approved I 130 for my spouse and 2 yrs old son residing out side of USA.

Orlando, FL |

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.

Can some one please read instructions on how to fill form I 130 specially instructions 3 and 4 . Does it say that my 2 yrs old son qualify for a derivative visa?or did I needed to file a separate I 130?

Attorney Answers 5

  1. Page one of the I-130 instructions state you must fie a separate I-130 for each eligible relative. You should talk with an immigration attorney to discuss what options are available, if any to expedite the process for your 2 year old son.

  2. 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)
    Schedule a Legal Consultation - Telephonic, Skype or In-Person
    600 Wilshire Blvd., Suite 1550
    Los Angeles, CA 90017
    (213) 394-4554 x0
    Web: (English) (Spanish)

    (213) 394-4554 x0 Mr. Shusterman is a former INS Trial Attorney (1976-82) with over 35 years of immigration experience. His response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.

  3. Your two year old will come in as a derivative beneficiary. A separate I-130 will not be needed.

    Behar Intl. Counsel 619.234.5962 Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.

  4. Your son qualifies as a derivative. There are no derivatives for immediate relatives of US citizens.


    Robert Brown LLC
    Baldwin Park
    4767 New Broad Street
    Orlando, Florida 32814

  5. 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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