6 USCIS-PM B.2
A U.S. citizen, U.S. national,[1] or lawful permanent resident (LPR) may file a Petition for Alien Relative (Form I-130) on behalf of certain relatives who seek to immigrate based on a qualifying family relationship.[2]
This chapter addresses general eligibility requirements for family-based immigrant visa petitions, including the qualifying relationship between the petitioner and the principal beneficiary and requirements for family members of the principal beneficiary to qualify as derivative beneficiaries.
A qualifying relationship between the petitioner and the alien beneficiary must exist at the time the immigrant visa petition is filed and continue through adjudication.[3] USCIS determines if the alien beneficiary of a petition is eligible for the family-based classification sought.
U.S. citizen petitioners may file a Form I-130 on behalf of the following relatives:
LPR and U.S. national (who are not citizen) petitioners may file a Form 1-130 on behalf of the following relatives:
Immediate relatives include spouses, certain children[13] and parents of U.S. citizens.[14] The following table summarizes general principles applicable to each immediate relative category.
| Family-Based Immediate Relative Category | General Principles |
|---|---|
| Spouse of U.S. citizen | An immediate relative spouse includes someone who is recognized as married to a U.S. citizen under the laws of the place of celebration.[15]Upon the death of the U.S. citizen, the alien spouse may still qualify as an immediate relative as a widow or widower if certain conditions are met.[16] |
| Child of U.S. citizen | An immediate relative child includes someone unmarried and under the age of 21 whose relationship to a U.S. citizen is covered under INA 101(b)(1).[17] |
| Parent of a U.S. citizen | An immediate relative parent includes someone whose relationship to a U.S. citizen is covered under INA 101(b)(1).[18]The U.S. citizen petitioning for the parent must be 21 years of age or older.[19] |
Certain family members of U.S. citizens, U.S. nationals, and LPRs, who are not immediate relatives, may be eligible to immigrate as a family member through the preference system.[20]
The following table summarizes the general principles applicable to each family-based preference category.
| Family-Based Preference Category | General Principles |
|---|---|
| Unmarried sons and daughters of U.S. citizens[21](1st preference) | A family preference unmarried son or daughter includes someone who is unmarried and 21 years or older who once qualified as a child of the U.S. citizen.[22]Unmarried generally means not married at the time of filing through admission or adjustment of status, whether or not previously married.[23] |
| Family members of LPRs(2nd preference)[24] | Certain family members of an LPR may be eligible for family preference based immigration and include someone who is the spouse, child (under 21 and unmarried), or unmarried son and daughter (21 years old or older) of the LPR. |
| Married sons and daughters of U.S. citizens[25](3rd preference) | A family preference married son or daughter includes someone who is married and once qualified as a child of the U.S. citizen.[26]Married generally means a person who is recognized as married under the laws of the place of celebration.[27] |
| Brothers and sisters of U.S. citizens[28](4th preference) | A family preference sibling includes someone who has at least one parent in common with a U.S. citizen.[29]The U.S. citizen petitioning for the brother or sister must be 21 years or older.[30] |
Certain life events, such as the petitioner’s naturalization, a change in the beneficiary’s marital status, or the beneficiary turning 21 years old, may impact a pending or approved immigrant visa petition. These material changes in circumstances may result in:
Automatic Conversion
USCIS converts the classification of an alien beneficiary’s petition to a different immigrant visa category if a change in circumstances occurs that would allow the alien beneficiary to be classified under a different visa category. In such cases, the alien beneficiary retains the original priority date.[32] Examples where a material change in circumstance may lead to a converted classification include:
If an event occurs while the petition is pending or the alien beneficiary is waiting for an immigrant visa to become available, the alien beneficiary’s visa classification changes accordingly as of the date of the event.[37]
Opting Out of Automatic Conversion
Sometimes the wait for one family preference immigrant visa category is shorter than the wait for another family preference immigrant visa category. Certain alien beneficiaries may opt out of the automatic conversion to stay in a preference category with a shorter wait. For example, an alien beneficiary whose immigrant visa category automatically converts to the first preference immigrant visa category upon the petitioner’s naturalization may opt out of the automatic conversion to remain in the second preference immigrant visa category as the son or daughter of an LPR.[38]
Conversion of Classification for Derivative Beneficiaries[39]
Generally, a child who turns 21 and does not benefit from the Child Status Protection Act (CSPA)[40] is no longer eligible as a derivative beneficiary and requires a new petition.[41] However, if the CSPA allows the beneficiary to automatically convert to a new category as a principal beneficiary based on their relationship to the same petitioner, USCIS does not require a new petition since there is a corresponding immigrant visa category for the child when they turn 21.[42]
For example, the derivative child of a spouse of an LPR who ages out automatically converts to a principal beneficiary as the unmarried son or daughter of an LPR. No new petition is needed, and the child retains the priority date from the original petition.[43]
In most cases, a derivative beneficiary who changes marital status can no longer qualify as a derivative beneficiary. For example, a child who marries no longer qualifies as a derivative beneficiary because he or she does not meet the definition of a child.[44] In addition, a spouse who divorces the principal beneficiary no longer has the required family relationship to the principal beneficiary to qualify as a derivative beneficiary.[45] A spouse whose marriage ends because the principal beneficiary dies, however, may be eligible to request the immigrant petition be reinstated, remain approved, or adjudicated, if pending, as if the principal had not died.[46]
Denial
If an event occurs while the petition is pending that places the alien beneficiary in a relationship for which there is no visa classification, USCIS denies the petition. For example, if an unmarried son or daughter of an LPR marries while the petition is pending, USCIS denies the petition because there is no visa classification for the married son or daughter of an LPR.
Automatic Revocation
If an event occurs after the petition has been approved and before the alien beneficiary adjusts status or is admitted as a lawful permanent resident, that places the beneficiary in a relationship for which there is no visa classification the petition is generally automatically revoked.[47] For example, if an unmarried son or daughter of an LPR marries after the petition is approved and before the alien beneficiary adjusts status or commences his or her journey to the United States the petition is automatically revoked because there is no visa classification for the married son or daughter of an LPR.[48]
Generally, family members of an immediate relative beneficiary are not eligible to accompany or follow to join the immediate relative as derivative beneficiaries.[49] However, these family members may independently qualify for an immigration classification if the U.S. citizen petitioner can demonstrate a qualifying relationship to the family member.
For example, a U.S. citizen petitioning for an immediate relative spouse may file a separate petition for the child of that spouse, as the child’s stepparent. The U.S. citizen petitioner must file a separate petition for each individual family member who qualifies as an immediate relative.
Spouses and children of a family-based preference beneficiary may be eligible to accompany or follow to join the principal beneficiary as derivative beneficiaries. The petitioner is not required to file a separate petition for derivative beneficiaries.[50]
A derivative beneficiary may seek the same immigrant status and is assigned the same priority date for visa availability as the principal beneficiary if accompanying or following to join the principal beneficiary.[51] The relationship between the derivative beneficiary and the principal beneficiary must continue to exist at the time of adjustment of status or admission for the derivative beneficiary to remain eligible for adjustment or admission.[52]
Dependent Child of an LPR
In some cases, the child of an LPR may qualify either as a principal beneficiary based on a petition filed on behalf of the child, or as a derivative beneficiary through a petition filed by the LPR on behalf of the child’s alien parent. The child can only qualify as the principal beneficiary of a petition filed by the LPR if the child has the requisite child-parent relationship to the LPR petitioner.[53]
For example, a stepchild of an LPR, who was age 18 or older at the time the LPR married the stepchild’s alien parent, would only qualify for an immigrant visa as a derivative beneficiary of a petition filed on behalf of the alien parent. In this situation, the stepchild would not qualify as a principal beneficiary because the marriage creating the step-relationship did not occur before the child turned 18.[54]
An LPR petitioner may decide to file one petition (for the spouse as the principal beneficiary and the spouse’s children as derivative beneficiaries) or separate petitions for each qualifying family member (one for the spouse and one for each of the spouse’s children). A child accompanying or following to join a principal beneficiary under INA 203(a)(2) of the Act may be included in the principal beneficiary's second preference visa petition.[55] If the principal beneficiary dies, the remaining derivative beneficiaries may be eligible for relief under INA 204(l) without the need for new petitions. However, the petitioner may file new petitions if a qualifying relationship still exists with the derivative beneficiaries.
If the petitioner chooses to file separate petitions, each alien beneficiary can immigrate independently. For example, if one child needs to immigrate before the others are ready to travel, that child may do so as the principal beneficiary of a petition.
Additionally, if a petition is filed separately on behalf of the child, the child may independently adjust status based on the child’s relationship to the LPR parent, whereas a derivative beneficiary’s eligibility to adjust status is tied to the principal beneficiary parent’s eligibility. If the LPR parent naturalizes after filing an immigrant visa petition for the principal beneficiary, the petition converts to an immediate relative petition and the child is no longer eligible as a derivative beneficiary. In this situation, the petitioner must file a new petition on behalf of the child as an immediate relative.[56]
[^ 1] A person who, though not a citizen of the United States, owes permanent allegiance to the United States (for example, persons born in American Samoa or Swains Island). See definition in Glossary.
[^ 2] Some alien relatives of U.S. citizens may self-petition by filing a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360). An alien may file Form I-360 when seeking to immigrate as an abused spouse, child, or parent under the Violence Against Women Act; as an Amerasian under the Amerasian Act; or as a widow or widower of a U.S. citizen. See Volume 3, Humanitarian Protection and Parole, Part D, Violence Against Women Act [3 USCIS-PM D]. See Volume 7, Adjustment of Status, Part P, Special Adjustment Programs, Chapter 9, Amerasian Immigrants [7 USCIS-PM P.9]. For widows and widowers of U.S. citizens, USCIS automatically converts a pending or approved spousal Form I-130 to a Form I-360 when the U.S. citizen petitioner dies. See the Green Card for Widow(er) of a U.S. Citizen webpage.
[^ 3] See 8 CFR 103.2(b)(1).
[^ 4] See INA 201(b)(2)(A)(i).
[^ 5] See INA 201(b)(2)(A)(i). Under the Child Status Protection Act (CSPA), certain children may have their age frozen at the time of petition filing to preserve their eligibility for an immigrant visa. For more information on CSPA age calculation, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 7, Child Status Protection Act [7 USCIS-PM A.7].
[^ 6] See INA 201(b)(2)(A)(i).
[^ 7] See INA 203(a)(1).
[^ 8] See INA 203(a)(3).
[^ 9] See INA 203(a)(4).
[^ 10] See INA 203(a)(2).
[^ 11] See INA 203(a)(2). Under the CSPA, certain applicants in family-based categories who are not immediate relatives may have their age determined based on a calculation that considers the time the visa petition was pending and the beneficiary’s age on the date a visa becomes available to preserve their eligibility for an immigrant visa. See INA 203(h)(1). For more information on the CSPA age calculation, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 7, Child Status Protection Act [7 USCIS-PM A.7].
[^ 12] See INA 203(a)(2).
[^ 13] See INA 101(b)(1).
[^ 14] See INA 201(b)(2)(A)(i).
[^ 15] See INA 101(a)(35). See Matter of P-, 4 I&N Dec. 610, 613 (A.G. 1952).
[^ 16] See INA 201(b)(2)(A)(i).
[^ 17] See INA 101(b)(1)(A)-(G). See Chapter 8, Children, Sons, and Daughters [6 USCIS-PM B.8].
[^ 18] See INA 101(b)(1) and INA 101(b)(2).
[^ 19] See INA 201(b)(2)(A)(i).
[^ 20] See INA 203(a).
[^ 21] See INA 203(a)(1).
[^ 22] See Matter of Bullen (PDF), 16 I&N Dec. 378 (BIA 1977) (In order to qualify as a “daughter” for preference purposes under INA 203(a)(2), the beneficiary must once have qualified as the child of the petitioner under INA 101(b)(1).).
[^ 23] See 8 CFR 103.2(b)(1), 8 CFR 205.1(a)(3)(i)(H), and 8 CFR 204.2(i).
[^ 24] See INA 203(a)(2).
[^ 25] See INA 203(a)(3).
[^ 26] See Matter of Bullen (PDF), 16 I&N Dec. 378 (BIA 1977) (In order to qualify as a “daughter” for preference purposes under INA 203(a)(2), the beneficiary must once have qualified as the child of the petitioner under INA 101(b)(1).).
[^ 27] See INA 101(a)(35). See Matter of P-, 4 I&N Dec. 610, 613 (A.G. 1952).
[^ 28] See INA 203(a)(4).
[^ 29] See INA 101(b)(1) and INA 101(b)(2). See Matter of Garner (PDF), 15 I&N Dec. 215 (BIA 1975) (To support a claimed brother-sister relationship under INA 203(a)(5), petitioner and beneficiary must have once qualified as children of a common parent as provided in INA 101(b)(1) and INA 101(b)(2).).
[^ 30] See INA 203(a)(4).
[^ 31] See 8 CFR 204.2(i). Petitioners should inform USCIS of life events that may impact the immigrant category of their beneficiary. If an adjustment application or immigrant visa petition is still pending with USCIS, the alien (beneficiary applying to adjust status) or petitioner should notify the USCIS office that issued the receipt notice or most recent correspondence in writing. If the approved petition is with the U.S. Department of State’s National Visa Center, the petitioner or applicant should write to the National Visa Center directly.
[^ 32] See 8 CFR 204.2(i). The priority date of the newly converted petition is generally the date on which that petition was originally filed (albeit for another classification).
[^ 33] See 8 CFR 204.2(i)(1)(i).
[^ 34] See 8 CFR 204.2(i)(1)(iii).
[^ 35] See INA 201(f)(2). See 8 CFR 204.2(i)(3).
[^ 36] See 8 CFR 204.2(i)(2). However, if an alien beneficiary (principal or derivative) is a child under the age of 21 when the immigrant petition is filed but turns 21 years old before it is approved or before the alien beneficiary seeks an immigrant visa, the alien beneficiary may be eligible to remain a child for immigration purposes. See the Child Status Protection Act (CSPA), Pub. L. 107-208 (PDF) (August 6, 2002). For information on how a beneficiary’s age at the time of filing the petition impacts eligibility for an immigrant visa, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 7, Child Status Protection Act [7 USCIS-PM A.7].
[^ 37] See 8 CFR 204.2(i)(1).
[^ 38] See INA 204(k)(2). A beneficiary may opt out by submitting a written request and contacting the USCIS office that approved the petition (printed on the approval or receipt notice) or the USCIS Contact Center and requesting to opt out of automatic conversion. For additional information on opting out of automatic conversion see the Child Status Protection Act (CSPA) webpage.
[^ 39] For information about family-based derivative beneficiaries, see Section C, Family Members of the Principal Beneficiary [6 USCIS-PM B.2(C)].
[^ 40] See Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 7, Child Status Protection Act [7 USCIS-PM A.7].
[^ 41] See 8 CFR 204.2(a)(4).
[^ 42] See INA 203(h)(3). See Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191 (2014), upholding Matter of Wang (PDF), 25 I&N Dec. 28 (2009).
[^ 43] See INA 203(h)(3). See Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 2212 n.16 (2014) (observing that INA 203(h)(3) superseded the requirement in 8 CFR 204.2(a)(4) that a subsequent petition be filed by the same petitioner for an aged-out derivative beneficiary). For more information on priority dates, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review [7 USCIS-PM A.6].
[^ 44] See INA 203(d) and INA 101(b)(1).
[^ 45] See INA 203(d).
[^ 46] See INA 204(l). For more information, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 9, Death of Petitioner or Principal Beneficiary, Section B, Effect on Adjustment Application [7 USCIS-PM A.9(B)]. This scenario only applies to derivative beneficiaries in the family-based third preference (F3) and family-based fourth preference (F4) categories.
[^ 47] See 8 CFR 205.1(a)(3). However, USCIS may not revoke the petition if converted to a new classification. See 8 CFR 205.1(a)(3)(G) and 8 CFR 205.1(a)(3)(H).
[^ 48] See 8 CFR 205.1(a)(3)(i)(I).
[^ 49] See 8 CFR 204.2(a)(4). A widow or widower, however, is permitted to have an immediate relative classified as derivative beneficiaries to accompany or follow to join. See 8 CFR 204.2(b)(4).
[^ 50] See INA 203(d). In general, a petitioner should list all known derivative beneficiaries on the Form I-130. Note that a principal beneficiary’s natural born child born after the principal’s LPR admission or adjustment may still be eligible as a derivative if born of a marriage that existed at the time of the principal’s admission or adjustment to LPR status. See 8 CFR 204.2(a)(4), 8 CFR 204.2(d)(4), and 8 CFR 204.2(g)(4).
[^ 51] See INA 203(d). For more information on derivative status by accompanying or following to join a principal, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability, Subsection 6, Derivatives [7 USCIS-PM A.6(C)(6)]. Accompanying refers to a derivative who is immigrating concurrently with the principal beneficiary or who has an immigrant visa issued within 6 months of the principal beneficiary’s admission or adjustment. Following to join refers to a derivative who is immigrating more than 6 months after the principal beneficiary, based on a relationship that existed at the time of the principal’s immigration, so long as the relationship still exists at the time of the derivative’s admission.
[^ 52] See 8 CFR 103.2(b)(1).
[^ 53] See INA 101(b)(1).
[^ 54] See INA 101(b)(1)(B).
[^ 55] See 8 CFR 204.2(a)(4).
[^ 56] See 8 CFR 204.2(a)(4).