‘Who is included under my petition?’

Dear Atty. Gurfinkel,

Many years ago, I was petitioned by my sister when I was young and single. While waiting for my priority date to become current, I got married and had children.

My priority date is now current and I am about to be processed for my visa. Would my kids and spouse be able to immigrate with me even though they are not listed in the petition?

Very truly yours,

D.M.

Dear D.M.:

Some petitions allow a person to "add on" or include certain immediate family members whether or not those family members were named in the original petition. These family members (such as spouses or children), called "derivative beneficiaries", may not have even been around at the time the petition was filed.

The following are the various petition categories, indicating whether or not a "later acquired" spouse or child can be included or added to on the petition:

1. Immediate Relative (Spouse, Parent or Child [under 21 years of age] of U.S. Citizen (IR):

Derivative beneficiaries are not allowed for Immediate Relatives. Each Immediate Relative must have his or her own petition, separately filed on his or her behalf.

2. Unmarried Son or Daughter (over 21 years of age) of U.S. citizen (F-1):

• Spouse: Obviously, an "unmarried" child should not have a spouse. If the primary beneficiary marries, the petition is converted to F-3.

• Children: Children are allowed to be included as derivative beneficiaries.

3. Minor or Adult Single Child of Greencard-holder (F-2A or F-2B):

• Spouse: A spouse is not allowed as a derivative beneficiary. If the primary beneficiary marries, the petition is considered void.

• Children: Children are allowed to be included as derivative beneficiaries.

4. Married Child of U.S. Citizen (F-3):

• Spouse: A spouse is allowed as a derivative be-neficiary.

• Children: Children are allowed to be included as derivative beneficiaries.

5. Brother or Sister of U.S. Citizen (F-4):

• Spouse: A spouse is allowed to be included as a derivative beneficiary.

• Children: Children are allowed to be included as derivative beneficiaries.

6. Employment-based (Labor Certification):

• Spouse: A spouse is allowed to be included as a derivative beneficiary.

• Children: Children are allowed to be included as derivative beneficiaries.

A person’s marital status and the existence of children are important not only at the time the petition is filed, but are also important at the time a person is being processed for his or her visa or is adjusting status. If, after the time that the petition was filed, you got married, your marriage was terminated (through annulment, death, divorce etc.), or you had children, you should make sure to determine how the marriage, or itstermination, affects your petition, and whether or not these family members are, or can be, included with the petition. In some cases, beneficiaries hide, or do not declare, the existence of these "after-acquired" family members when being processed for their visa, by continuing to claim that they are "single and childless." However, there are petition categories in which the existence of these family members would not affect the person’s eligibility for a visa, and could even result in these family members being eligible to be processed for a visa with the primary beneficiary under the same petition.

If there have been any changes in circumstances in regards to your marital status or existence of children, you may wish to seek the advice of a reputable attorney, who can evaluate your situation, and perhaps assist you in including these new family members to your petition.

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