The Immigration Petition for a U.S. Citizen Newly Married Foreign Spouse's Son, For I-130, Immigration Petition, U.S. Citizen Newly Married Spouse, Foreign Spouse Son

Question:

I am a U.S. citizen petitioning a newly married foreign spouse with Form I-130. Do I need to file a separate Form I-130 for her 14 years old son?

Answer:

In U.S. immigration, the "children” includes only unmarried children under age 21. Include all children even if they will not be immigrating to the United States.

If the spouse and children also intend to immigrate to the United States, it may or may not be necessary to file separate Form I-130 petitions. This can be confusing for many petitioners. You are not required to file separate petitions for the beneficiary’s spouse or unmarried children under 21, if the beneficiary is your:

• Married son or daughter and you are a U.S. citizen
• Brother or sister and you are a U.S. citizen
• Spouse and you are a lawful permanent resident
• Unmarried child (under 21) and you are a lawful permanent resident
• Unmarried son or daughter (21 or older) and you are a U.S. citizen or lawful permanent resident

The spouse and children in these cases qualify as “derivative beneficiaries.” A separate Form I-130 is not required. Once the Form I-130 is approved and current, the derivative beneficiaries may apply for an immigrant visa (green card) at the same time as the principal beneficiary.

This is not the case for the spouse and children of immediate relatives. For example, if you are a U.S. citizen petitioning a spouse, you must file separate I-130 petitions for your spouse’s unmarried children under 21 years of age. This is one of the most overlooked details in the I-130 instructions.