What are Derivative Beneficiary and Does it Apply to My Case?

In an immigration case, whether family based or employment based, a derivative beneficiary is someone who is able to immigrate through a principal applicant.  There are two types of derivative beneficiaries in immigration law, spouses and minor children.  A derivative beneficiary can either immigrate with the principal applicant, or what is called follow-to-join.  Follow-to-join means the derivative beneficiary would immigrate at a later date, presuming they still qualify as a derivative.  For example, the child is still under 21 and has not married.

To What Cases do Derivative Beneficiaries Apply?

Not all immigration cases have derivative beneficiaries.  They only apply to what we call preference category cases.  Preference category cases are cases where there is a limited number of visas available.  When you file your case, you are assigned a date.  This date is called the priority date.  When the date becomes current, meaning a visa is available for you, you are able to immigrate.  There are family based preference categories and there are employment based preference categories.  So, all the preference categories allow for derivative beneficiaries.  What is an example?  Under the family based categories, there is the F4 category, which is brothers and sisters of U.S. citizens.  Let’s say you are a U.S. citizen and file your case for your sister.  When her case becomes current, and she can immigrate, her spouse and minor children can also immigrate with her.

To What Cases do Derivative Beneficiaries not Apply?

Derivative beneficiaries do not apply to immediate relative cases.  Immediate relatives are what you would think, the immediate family of U.S. citizens.  Here you would think spouses, minor children, and parents.  However, it also means that a visa is immediately available.  In other words, there are no numerical limits to the number of visas issued each year.  If you apply, and the case is approved, your immediate relative can immigrate.  On the surface, this seems unfair, why aren’t there derivatives of immediate relatives?  The reason comes back to the fact that visas are immediately available and there is no wait.  So, the U.S. citizen can file directly for his or her relatives.  If he or she files for a spouse, then they can also file for their children and all can immigrate at the same time.  There is no waiting for a visa to become available.  If the U.S. citizen files for his or her parent, the minor children of the parent (siblings of the petitioner) cannot be included.  However, the parent could file a case for the children as a permanent resident.  This is a preference category, but the wait time is generally not as long as some of the other categories.  

Conclusion

While the rules for derivative beneficiaries seem complicated, the easiest way to remember is that if your case is an immediate relative case, then there are no derivative beneficiaries.  All other preference categories do allow for derivative beneficiaries.

My name is Matthew Larsen.  I am a South Dakota based U.S. Immigration Attorney.  I have over a decade of full time family based immigration experience.  I represent clients across the country and around the world.