Question about the I-130 Instructions comparing the requirements for a petition made by a U.S. citizen for their spouse and stepchild vs a petition made by a Lawful Permanent Resident (LPR)

[lucasmelo152 0]

The rules and questions below may also apply to unmarried children under 21 and sons/daughters with their derivatives.

I want to understand the required forms for each application and ensure my interpretation of the instructions is correct.

According to the I-130 instructions, on pages 1 and 2, Notes 4 and 5, it explains that for certain beneficiaries, separate petitions for unmarried children are not required because they are considered derivatives. Please see picture attached.

My understanding:

As far as I know, the ‘Immediate Relative’ category only applies to US Citizens (Reference: GC Eligibility Categories) 

So, no child of an LPR is considered an Immediate Relative. Instead, they are categorized as ‘Other Relatives’ or ’Family Members’.

Which means, if an LPR is applying for their stepchild, the child should be a derivative of the spouse, unlike the US citizen application, where the unmarried child must have their own I-130 application as an Immediate Relative.

My questions are:

1. Spouse + step child: Is my understanding above correct? The USC must petition for their stepchild as an Immediate Relative with their own I-130, and the LPR must include the stepchild in their spouse’s I-130? As USCIS used the words “are not required” and “should,” I’m unsure if they must be included or if the LPR has the option to file a separate I-130 for their stepchild. What should be done here?

 

2. Comparing a USC applying for their unmarried children under 21 (1.B above) and an LPR applying for their unmarried children under 21 (2.B above):

The USC cannot petition for the unmarried child under 21 of their unmarried child under 21 (grandchild). Instead, the USC petitions for their unmarried child under 21, and then when the beneficiary becomes an LPR, they can file for their own child. However, based on Note 5 of the I-130 instructions, it looks like the beneficiary of an LPR is allowed to include their unmarried child under 21 in their application as a derivative. So, technically, the grandchild can immigrate with their parent in an LPR application but cannot in a USC application.

Is my understanding correct, or am I confused about some points?

 

Sorry for the length of the post.. just wanted to provide the whole context for clarity. Thank you a lot in advance for your responses 🙏🏼🙏🏼

[Dashinka 24,653]

15 minutes ago, lucasmelo152 said:

The rules and questions below may also apply to unmarried children under 21 and sons/daughters with their derivatives.

I want to understand the required forms for each application and ensure my interpretation of the instructions is correct.

According to the I-130 instructions, on pages 1 and 2, Notes 4 and 5, it explains that for certain beneficiaries, separate petitions for unmarried children are not required because they are considered derivatives. Please see picture attached.

My understanding:

As far as I know, the ‘Immediate Relative’ category only applies to US Citizens (Reference: GC Eligibility Categories) 

So, no child of an LPR is considered an Immediate Relative. Instead, they are categorized as ‘Other Relatives’ or ’Family Members’.

Which means, if an LPR is applying for their stepchild, the child should be a derivative of the spouse, unlike the US citizen application, where the unmarried child must have their own I-130 application as an Immediate Relative.

My questions are:

1. Spouse + step child: Is my understanding above correct? The USC must petition for their stepchild as an Immediate Relative with their own I-130, and the LPR must include the stepchild in their spouse’s I-130? As USCIS used the words “are not required” and “should,” I’m unsure if they must be included or if the LPR has the option to file a separate I-130 for their stepchild. What should be done here?

Yes, assuming the marriage creating the "step" relationship occurred prior to the child turning 18 a USC would need to provide a separate I130 for the step-child (IR2 classification).  If one is an LPR with a step-child who was under 18 when the "step" relationship was created, no new I130 is needed as the step-child would be a derivative on the foreign spouses F2A visa eventually.

15 minutes ago, lucasmelo152 said:

 

2. Comparing a USC applying for their unmarried children under 21 (1.B above) and an LPR applying for their unmarried children under 21 (2.B above):

The USC cannot petition for the unmarried child under 21 of their unmarried child under 21 (grandchild). Instead, the USC petitions for their unmarried child under 21, and then when the beneficiary becomes an LPR, they can file for their own child. However, based on Note 5 of the I-130 instructions, it looks like the beneficiary of an LPR is allowed to include their unmarried child under 21 in their application as a derivative. So, technically, the grandchild can immigrate with their parent in an LPR application but cannot in a USC application.

Interesting scenario if an unmarried child under 21 who also has a child obviously under 21.  If this were to occur with a USC petitioning you are correct, the grandchild would not be a derivative of an IR2 as IR visas does not allow for derivatives (family based F1, F3 and F4 do according to note 4).  A similar situation could be a USC applying for a parent (IR5) where the parent has additional children (siblings of the USC) under 21 who are not in the US.  As an LPR petitioning for an unmarried child under 21, their children, if they have any, would be derivatives.

15 minutes ago, lucasmelo152 said:

Is my understanding correct, or am I confused about some points?

 

Sorry for the length of the post.. just wanted to provide the whole context for clarity. Thank you a lot in advance for your responses 🙏🏼🙏🏼

 

[Boiler 45,761]

On the assumption you intend to naturalie I would file an I 130 for both.

[Boiler 45,761]

On the assumption you intend to naturalie I would file an I 130 for both.

[lucasmelo152 0]

 

2 hours ago, Dashinka said:

Yes, assuming the marriage creating the "step" relationship occurred prior to the child turning 18 a USC would need to provide a separate I130 for the step-child (IR2 classification).  If one is an LPR with a step-child who was under 18 when the "step" relationship was created, no new I130 is needed as the step-child would be a derivative on the foreign spouses F2A visa eventually.

@Dashinka Thanks a lot for you guidance and further information! 

[lucasmelo152 0]

2 hours ago, Dashinka said:

Interesting scenario if an unmarried child under 21 who also has a child obviously under 21.  If this were to occur with a USC petitioning you are correct, the grandchild would not be a derivative of an IR2 as IR visas does not allow for derivatives (family based F1, F3 and F4 do according to note 4).  A similar situation could be a USC applying for a parent (IR5) where the parent has additional children (siblings of the USC) under 21 who are not in the US.  As an LPR petitioning for an unmarried child under 21, their children, if they have any, would be derivatives.

Yeah it is an interesting scenario... I just found it a bit off that a UCS cannot apply for their grandchild, but a LPR technically can (through their child application). In any of those three scenarios, an LPR is allowed to include the beneficiary's unmarried child under 21 in the I130 application as a derivate. 

[Dashinka 24,653]

15 minutes ago, lucasmelo152 said:

Yeah it is an interesting scenario... I just found it a bit off that a UCS cannot apply for their grandchild, but a LPR technically can (through their child application). In any of those three scenarios, an LPR is allowed to include the beneficiary's unmarried child under 21 in the I130 application as a derivate. 

Probably one of those things that needs to be fixed relative to the legal immigration laws.  Why IRs do not include derivatives is beyond me, but family based F1, F2 (F2A/F2B), F3 and F4 do.  We had a recent post where a couple had a child overseas that does not qualify for CRBA, so the USC has to file an I130 and attempt to expedite it so as to catch up with the IR1 and IR2s already issued.  Another post where an LPR had petitioned for his wife (F2A) with a step-child then the LPR naturalized so the step-child will no longer be a derivative and reverts to F1 with an new I130 required.  Overall, I am fine with family based categories having derivatives as we petitioned for my adult step-son when my wife naturalized (I could not petition for him as we married after he was 18) and that will include his wife and their children if they have them in the next 15+ years.

[Boiler 45,761]

IRs do not have the long wait for a PD

[Redro 4,611]

2 hours ago, lucasmelo152 said:

Yeah it is an interesting scenario... I just found it a bit off that a UCS cannot apply for their grandchild, but a LPR technically can (through their child application). In any of those three scenarios, an LPR is allowed to include the beneficiary's unmarried child under 21 in the I130 application as a derivate. 

It sounds great until you realize:

If the primary beneficiary’s petition is denied. No derivatives are issued visas.  (Correct me if I’m wrong but that’s my understanding). 

Derivatives need to enter either WITH or AFTER the main beneficiary (we’ve seen issues with naturalization when the main beneficiary stayed in the home country or entered after one of the derivatives). 
Derivatives can and do age out. Now they have a longer wait or are left behind in the home country. 
People might think it’s “cruel” that LPRs are allowed derivatives and USCs aren’t. 

In my opinion it’s actually better to allow separate petitions. This allows each person wanting to come to the US to come based on the relationship to the petitioner…

Of course, brother and sisters of USCs can include derivatives… but we are just comparing LPRs and their spouses and children vs USCs and their spouses and children. 
ETA if you are an LPR you can and should file an I130 for each of your family members (spouse and children). 

Edited April 3 by Redro

[lucasmelo152 0]

20 hours ago, Dashinka said:

Another post where an LPR had petitioned for his wife (F2A) with a step-child then the LPR naturalized so the step-child will no longer be a derivative and reverts to F1 with an new I130 required.  Overall, I am fine with family based categories having derivatives as we petitioned for my adult step-son when my wife naturalized

Yeah, there are def a lot of holes that the government should fix to expedite any sort of family reunification and reduce these insane backlogs. 

 

That’s the downside of the derivative application. Either they age out or the LPR naturalizes. Which brought me another thought.. 

 

Considering whether to file the petition directly for a child/stepchild beneficiary or as derivative. (Since "child" and "stepchild" hold the same meaning for the USCIS, under 18 at the time of marriage):

 

Can the LPR petition for their child/stepchild in either scenario? Can they file a direct petition as a beneficiary for the child (2.B) OR as a derivative of the LPR's spouse (2.A), even if the child is the LPR's child living abroad or their stepchild?

Edited April 4 by lucasmelo152

[Dashinka 24,653]

6 minutes ago, lucasmelo152 said:

Yeah, there are def a lot of holes that the government should fix to expedite any sort of family reunification and reduce these insane backlogs. 

 

That’s the downside of the derivative application. Either they age out or the LPR naturalizes. Which brought me another thought.. 

 

Considering whether to file the petition directly for a child/stepchild beneficiary or as derivative. (Since "child" and "stepchild" hold the same meaning for the USCIS, under 18 at the time of marriage):

 

Can the LPR petition for their child/stepchild in either scenario? Can they file a direct petition as a beneficiary for the child (2.B) OR as a derivative of the LPR's spouse (2.A), even if the child is the USC's child living abroad or their stepchild?

That is an interesting question, but why would you want to do that?  Two I130's, two fees, and both would be classified as F2A so the wait would be the same.  I wonder if USCIS will administratively close the child's petition.

[lucasmelo152 0]

17 hours ago, Redro said:

It sounds great until you realize:

If the primary beneficiary’s petition is denied. No derivatives are issued visas.  (Correct me if I’m wrong but that’s my understanding). 

Derivatives need to enter either WITH or AFTER the main beneficiary (we’ve seen issues with naturalization when the main beneficiary stayed in the home country or entered after one of the derivatives). 

Perhaps LPRs think that adding their relatives as derivatives into the beneficiary’s I-130 might streamline the process, requiring less paperwork, fewer documents, and saving $625. But on the other hand, the application can fall under the instances you brought up.

As I mentioned above, these gaps in the laws make it very unclear and doubtful for the applicants to decide what their best route is (without attorney assistance).

 

Like, whether the LPR should file for their child/stepchild as the main beneficiary or include them in the spouse’s petition as a derivative?

[lucasmelo152 0]

8 minutes ago, Dashinka said:

That is an interesting question, but why would you want to do that?  Two I130's, two fees, and both would be classified as F2A so the wait would be the same.  I wonder if USCIS will administratively close the child's petition.

 

I thought that, if the child qualifies to be the primary beneficiary of an I-130 petition, USCIS would require that, instead of including the child as a derivate in the spouse’s I130.