MOST petitions (family and employment based) allow the petitioner to include the beneficiary’s spouse and minor children, but not with immediate relative (IR) petitions (spouse, parents, minor children of U.S. citizens). For IR petitions, only one person per petition is allowed. No derivatives. Separate petitions are required for each family member.
Here are some of the scenarios for U.S. citizen petitioners where this can occur:
1. When petitioning parents, separate petitions are required for each parent.
2. When petitioning minor children, each child must be separately petitioned.
3. When petitioning a spouse and children, each requires their own separate petition. If you file only for your spouse, the children are not covered.
4. Along the same lines, if an immigrant files a petition for his or her spouse and children (F-2A), one petition would cover all of them. But if the petitioner naturalizes before the visas are issued, then only the spouse would be covered by the petition, and the children “fall off” the petition. The petitioner would now need to file new petitions for each child. Alternatively, the petitioner could have filed separate petitions for each family member while still an immigrant.
5. When petitioning a teenage daughter who may have gotten pregnant and given birth, the baby (the petitioner’s grandchild) would not be included in the petition and would need to be left behind. Again, this is because derivatives are excluded in the petition.
Before you file a petition, you should make sure all the requirements are met and determine who may be covered by your petition. Some people may have been unaware that petitions may convert upon naturalization and could be very disappointed. I remember one consultation where an immigrant petitioned his wife and three children, but before the interview at the Embassy, he naturalized. Imagine the family’s shock and disappointment when the consul issued the visa only for the wife and told her the children fell off the petition because the petitioner naturalized. She was not happy. And she was not going to leave her children alone in the Philippines. So, he had to scramble and file new petitions to cover each of his children.
That’s why if you have any questions, or just want to make sure things are in proper order and you meet the eligibility requirements, you should consult with an attorney who can review your case and determine the fastest and best way for you to achieve your American dream.
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Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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