Derivative Beneficiaries of Family-Based Petitions

Derivative beneficiaries are aliens who cannot be directly petitioned but can follow-to-join or accompany the original beneficiary. Let Manji Law, P.C help you get an immigrant visa.

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Atlanta Immigration Attorney Jameel Manji

Author: Jameel Manji, Founder, Manji Law, P.C.

Mr. Manji founded Manji Law in 2016 to follow his passion of helping people navigate the complicated immigration system. Mr. Manji graduated from Georgia State University College of Law and received Master of Taxation from the Georgia State’s J. Mack Robinson College of Business. Published on: June 03, 2023.

Manji Law is your complete immigration solution. If you are seeking assistance with the Atlanta Immigration Court, please give us a call. Manji Law can provide valuable insight, assistance, and a guiding hand to help you achieve your goals.

What Is Derivative Immigration?

Some U.S. visas confer derivative immigration benefits on family members of the principal beneficiary. Derivative beneficiaries must be petitioned for by a U.S. citizen or permanent resident as part of the lead beneficiary’s Form I-130.

Understanding the eligibility requirements of derivative beneficiaries can be confusing, especially in family-based visa categories.

This article will help you determine if you or your loved ones qualify as derivative immigrants and how derivative immigration works.

If you require legal advice or representation, our immigration attorney in Atlanta at Manji Law, P.C. is ready to help.

Who Qualifies as the Derivative Beneficiaries of Family-Based Petitions?

Any person who is a spouse or child of a lead beneficiary may qualify for immigration benefits as a derivative beneficiary of a family-based petition. The lead beneficiary, also called the principal beneficiary, is the person on whose behalf a petition is filed and who is eligible for a lawful permanent resident status.

Derivative beneficiaries are named in the same visa petition filed on behalf of the lead beneficiary. They can either accompany the lead beneficiary and enter the U.S. at the same time or follow-to-join them after more than six months.

Derivative immigration status is available for the non-immediate relatives of U.S. citizens, that is, married and unmarried sons and daughters, siblings, and spouses of siblings. The derivative status is also available for preference family members of lawful permanent residents, including spouses, minor children, and unmarried adult children.

If the beneficiary is an immediate relative of a U.S. citizen, they can’t bring derivative beneficiaries. Instead, each relative must be petitioned separately.

The derivative beneficiaries will also receive similar immigration benefits as the lead beneficiary. If the lead beneficiary is petitioned for a non-immigrant visa, their derivative children or spouse will also receive non-immigrant temporary visas. Conversely, when the lead beneficiary is eligible for a lawful permanent residence, so do his derivatives.

If you are a U.S. citizen who wishes to bring an immediate relative to the U.S., an attorney who is well-versed in family first preference visas can answer all your questions.

How Do Derivative Beneficiaries of Family-Based Petitions Work?

There are various steps to bring derivative immigrants to the United States. The process starts with the U.S. citizen or Lawful Permanent Resident (L.P.R.) filing out Form I-130, Petition for Alien Relative. This petition is filed to bring an eligible relative, the principal beneficiary, into the U.S. The U.S. citizen or LPR must prove their relationship with the principal beneficiary.

If the principal beneficiary wishes to bring his relatives, the petitioner, i.e., the U.S. citizen or LPR, must list their names as derivative beneficiaries on Form I-130. If the petitioner does not add your spouse or child as derivatives in the initial petition, you can file Form I-824, Application for Action on an Approved Application or Petition, to request the consular processing of their visas. This can only be done if the initial petition is approved by the U.S.C.I.S. and you are already in the U.S.

Once the U.S.C.I.S. approves the petition, it will notify the National Visa Center (N.V.C.). When visas are available, the principal beneficiary and their derivatives will be able to apply for a green card at the U.S. embassy or consulate where they live.

According to immigration laws, the primary beneficiary must also prove their relationship with the derivative recipients. If you are bringing a foreign national spouse, proof of marriage may be required. If you are bringing a child, their birth certificate and the marriage certificate of you and the child’s mother may be required.

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

Not all visas allow for derivative beneficiaries. The primary applicant can include derivative beneficiaries in their visa application if they are petitioned for in the following visa categories:

  • Family preference visas

  • Employment-based visas

  • Diversity visas

In some cases, such as with H-1B work visas, derivative beneficiaries are automatically eligible to apply for work authorization in the United States.

 

Can the Derivative Beneficiary Work Legally in the U.S.?

If the derivative beneficiary holds a non-immigrant visa, they may need to submit for work authorization in the United States to be able to work legally. Individuals granted permanent residency as derivative beneficiaries can generally live and work in the United States without requiring additional authorization.

If you are in the U.S. on a non-immigrant visa and wish to get permanent resident status, an attorney may help you understand your family-based adjustment of status options.

Manji Law, P.C. Can Help

Manji Law, P.C. can assign you an Atlanta family immigration Lawyer to assist with family-based immigration petitions and help you identify qualified derivative beneficiaries. We have a team of experienced immigration attorneys ready to provide guidance and representation throughout the immigration process.

Hiring a Manji Law, P.C. immigration attorney offers many benefits, including understanding the visa eligibility and requirements, navigating the complex immigration system, and ensuring the correct and timely filing of all necessary documents.

If you have questions about derivative beneficiaries of family-based petitions, contact us today!

 

F.A.Q.s

How Do You Add a Derivative Beneficiary?

The U.S. citizen or permanent resident must file Form I-130 on behalf of the lead beneficiary and his derivative family members.

If the petitioner does not include your derivative beneficiaries on the initial petition, you can file Form I-824 with the U.S.C.I.S. to request the consular processing of your child or spouse’s green cards at their local U.S. embassy.

It is advisable to consult an immigration attorney for guidance on the requirements and the required forms to bring a derivative beneficiary.

 

Can a Derivative Beneficiary Adjust Status? 

The derivative beneficiary can apply for permanent residence simultaneously as the primary applicant and is subject to the exact eligibility requirements.

To adjust your status as a derivative beneficiary, you must file Form I-485, Application to Register Permanent Residence or Adjust Status. You will have to specify whether you are a principal applicant or a derivative beneficiary in the form.

 

What Family-Based U.S. Visas Allow Derivative Beneficiaries?

The four categories of family preference visas allow lead beneficiaries to confer derivative benefits on their family. Essentially, derivative beneficiaries can be the spouses and unmarried children under 21 of:

  • Unmarried adult children, married children, and siblings of U.S. citizens, or
  • Spouses, unmarried minor children, and unmarried adult children of lawful permanent residents

Spouses, unmarried minor children, and parents of U.S. citizens cannot be derivative beneficiaries and must be petitioned for separately.