DERIVATIVE IMMIGRANT AND CITIZENSHIP
By Roman P. Mosqueda, Esq.
The phrase “derivative beneficiary,” as a term of art in immigration law, has a specific meaning and immigration benefit for the status holder.
A spouse and minor children of a principal beneficiary, who is petitioned as an alien relative by his/her parent (grandparent of minor children) or sibling (brother or sister) may accompany or follow to join such principal beneficiary, as derivative immigrants.
As derivative beneficiaries, the spouse and minor children get the same priority date as the principal beneficiary. The priority date is the date the petition for alien relative (Form I-130, $130 filing fee) was filed.
The spouse and minor children of an approved employment –based petition (Form I-140, $135 filing fee) are also derivative beneficiaries. The priority date for Form I-140 is the date of filing of the labor certification application, or the date the employment-based petition (1st, 4th & 5th preferences, not requiring labor certification) is filed with the Department of Homeland Security Service Center.
And a child born outside of the United States may obtain derivative citizenship as a matter of law through the parent or parents’ birth or naturalization, under the Child Citizenship Act of 2000 or under the former law before February 27, 2001.
Accompanying Derivative Beneficiary:
A spouse or minor children may enter the United States as lawful permanent resident with the principal beneficiary (spouse or parent), or within six (6) months of the principal beneficiary’s entry into the United States as a lawful permanent resident. No separate petition for alien relative (Form I-130) is required for the spouse or minor children.
An application for immigration visa is approved by the consular officer ($335 visa filing fee and $65 affidavit of support fee, if required) for the principal and derivative beneficiaries to enter the United States.
But a spouse or minor children acquired after admission as a lawful permanent resident of a principal beneficiary, cannot accompany or follow to join. A separate petition (Form I-130) is required to be filed for them by the spouse or parent.
Moreover, a spouse or minor child, acquired after the immigrant visa is issued to a principal beneficiary, but before admission to the United States, is still accorded derivative status and the priority date of the petition for the principal beneficiary.
Following To Join Derivative Beneficiary:
After the passage of six (6) months, the spouse or minor children can no longer be considered “accompanying” the principal beneficiary, but “following to join” such principal beneficiary.
In order to qualify as following to join derivative beneficiary, the following must exist:
(1) alien seeking entry to the United States is the spouse or child of the principal beneficiary before such principal beneficiary’s entry into the United States as a lawful permanent resident; and
(2) spouse or child of the principal beneficiary did not precede the principal beneficiary to the United States as a lawful permanent resident.
So, a spouse and child following to join may enter the United States with immigration visa at any time, provided they maintain their status, and continue their derivative status, without need to file a separate relative petition (Form I-130) for them.
And an accompanying or following to join derivative beneficiary may adjust status (Form I-485, $255 filing fee, $50 finger printing fee) to lawful permanent resident, even if he or she had preceded the principal beneficiary to the United States, provided that he or she did not precede the principal beneficiary as a lawful permanent resident, but as a non-immigrant who has maintained status.
If a child becomes twenty-one (21) years of age before his/her parents acquire lawful permanent resident status under the family-based second preference petition, a new second preference petition should be filed by the parent(s) for the aged-out child, under 2-B preference.
And the aged-out child gets the priority date of his/her parents’ family-based petition. But this rule does not apply to an aged-out child of a parent with an employment-based petition.
Moreover, the offspring of derivative children or parents are not accorded derivative priority date, whether the offspring has age-out or not.
An adopted child (adopted before sixteen years of age) who is a member of the principal beneficiary’s household gets the parent’s priority date.
Derivatives of battered spouses and children automatically become approved petitioners in the children preference category, even though aging out.
Aged-out children and divorced spouses of a grandfathered principal applicant, who seeks adjustment under Section 245(i) of the Immigration and Nationality Act (INA), are also grandfathered, though they do not adjust with the principal applicant.
And after-acquired children and spouses are allowed to adjust under aforesaid Section 245(i), provided they had acquired their status before the principal applicant adjusts.
A. Before February 27, 2001:
Under the old section 320(a) (before February 27, 2001) of INA, a child born outside of the United States may acquire derivative United States citizenship as a matter of law, if:
1. one parent was an alien;
2. the other parent is a United States citizen;
4. the child was residing in the United States as a lawful permanent resident, in the custody of the parent at the time of naturalization.
And if the parents were separated or divorced, the child has to show that:
1. his/her parents are, or were previously married;
2. they are now legally separated or divorced; and
3. he/she was in the lawful custody of the United States citizen parent.
B. On or After February 27, 2001:
The Child Citizenship Act of 2000, which took effect on February 27, 2001, amended the old version of Section 320(a) of INA and automatically accords derivative citizenship to the child born outside of the United States, if:
1. at least one parent of the child is a citizen of the United States, whether by birth or naturalization;
2. the child is under the age of eighteen years; and
3. the child is residing in the United States in the legal and physical custody of the citizen parent, pursuant to a lawful admission for permanent residence.
The child must have been under eighteen years of age as of February 27, 2001. And if the child is over eighteen years of age as of February 27, 2001, the child must show that his/her parents were legally separated or divorced , if one parent had custody, under the old version of Section 320(a) of INA.
A U.S. citizen parent has presumed legal custody, if the biological child resides with both natural parents who are married and living together.
A divorced U.S. citizen parent has legal custody of the child over whom he/she has joint custody.
Section 320(a) of INA also applies to an adopted child with a final adoption order or decree, but not to a step-child.
The child must be residing in the United States as a lawful permanent resident on or after February 27, 2001.
If the child was previously admitted as a lawful permanent resident, he/she must be absent from the United States on February 27, 2001, but subsequently readmitted as a lawful permanent resident after that date.
The application for derivative citizenship for a child is made on Form N-600 ($145 filing fee for minor and $185 filing fee for adult), and for an adopted child on Form N-643 (no filing fee).