question on IR-5 (how bring family along?)

[Arik G 0]

Dear all,

I would greatly appreciate your advise on this.

I am a father of US citizen (who is over 21 y.o.) so I fell within Immediate Relative category IR-5. I was assuming that when petition is approved for me my family (wife and two children) will join me to US as my dependants. However, I red now that it does not happen like that and I will need to become LPR first and then apply for my family. Would you please confirm if this is so?

If so, then what is the average waiting time to bring my family to US? I understand they are within F-2 A category (Family Second Preference), right?

Thank you very much in advance for clarifications!!!

[Ryan H 3,790]

I was assuming that when petition is approved for me my family (wife and two children) will join me to US as my dependants. However, I red now that it does not happen like that and I will need to become LPR first and then apply for my family. Would you please confirm if this is so?

This is correct, for an IR-5 visa, there are no derivative beneficiary visas in that category. You would have to file a petition for your wife after your arrival; the two children can receive a derivative visa from the underlying petition filed on behalf of your wife.

If so, then what is the average waiting time to bring my family to US? I understand they are within F-2 A category (Family Second Preference), right?

Your wife is in the F-2A category, the two children are in the F-2A category as well as long as they are minors, if they turn 21 before a visa becomes available, they drop to the F-2B category.

The current wait time for a visa to become available in the F-2A category is approximately 2.5 years according to the May Visa Bulletin.

Edited April 29, 2012 by Ryan H

[aaron2020 11,651]

This is correct, for an IR-5 visa, there are no derivative beneficiary visas in that category. You would have to file a petition for your wife after your arrival; the two children can receive a derivative visa from the underlying petition filed on behalf of your wife.

Your wife is in the F-2A category, the two children are in the F-2A category as well as long as they are minors, if they turn 21 before a visa becomes available, they drop to the F-2B category.

The current wait time for a visa to become available in the F-2A category is approximately 2.5 years according to the May Visa Bulletin.

The bold red text is incorrect.

One I-130 for mom. Children are derivative of mom. Children age out at 21. Without a petition for their own, they do not move into the F2b category. You cannot split the case for mom into multiple cases with different categories. Mom will get her visa in about 2-3 years. The age out children are not going to automatically get to continue as F2b beneficiaries.

Under no circumstances (that I am aware of) will an aged out child get his/her own separate case automatically. A new petition would need to be filed. With a new petition comes a new Priority Date.

If the children will age out, the OP must file for them separately. If the OP anticipate that a child may age out, it is better to have the child listed as a derivative under mom's petition and to file separately at the same time. Waiting for the child to age out and then file would only mean a newer Priority Date which starting at the back of the line for F2b.

Edited April 28, 2012 by aaron2020

[Darnell 8,478]

so, the beneficiary is you, you are seeking an IR-5.

The petitioner is one of yer children, a USA citizen.

hmmmmm..

Sorry, i have no real input here, but in the long run, it makes more sense for you to come first,

then you petition for yer wife and yer children later,

as IF the petitioner (your child) petitioned for you and your wife now (IR-5 category) then your children in yer country would be left without parents.

[Arik G 0]

Thank you Ryan and Aaron! That is what I was afraid of. With children I am not worrying so much as they are 14 and 8, so I hope to get them to US before they will turn 21.

My assumption that I can go as immediate relative and take the family with me was based on this FAQ section of this site - http://travel.state.gov/visa/immigrants/types/types_1306.html#19

Can My Family Members also Receive Immigrant Visas?

Based on your approved petition, your spouse and minor unmarried children,

younger than 21, may apply for immigrant visas with you. Like you, they must

also fill out required application forms, obtain required civil documents,

pay the required fees, and undergo medical examinations.

Probably my interpretation of this statement was incorrect.

[NigeriaorBust 4,087]

It is all a matter of what class visa you are getting about who can get a visa with you . When a child file for a parent other children are not included, when silblings apply then wife and children are included.

[aaron2020 11,651]

Thank you Ryan and Aaron! That is what I was afraid of. With children I am not worrying so much as they are 14 and 8, so I hope to get them to US before they will turn 21.

My assumption that I can go as immediate relative and take the family with me was based on this FAQ section of this site - http://travel.state.gov/visa/immigrants/types/types_1306.html#19

Can My Family Members also Receive Immigrant Visas?

Based on your approved petition, your spouse and minor unmarried children,

younger than 21, may apply for immigrant visas with you. Like you, they must

also fill out required application forms, obtain required civil documents,

pay the required fees, and undergo medical examinations.

Probably my interpretation of this statement was incorrect.

"Based on" and "may" are the operative words. USCIS could have worded it better.

Replace "Based on" with "Depending on" because they are essentially the same thing. Replace "may" with "may or may" because "may" is not as definite as the word "can" or "will be able to."

Depending on the approved petition, your spouse and minor unmarried children, younger than 21, may or may not apply for immigrant visas with you.

Whether your spouse and minor unmarried children, younger than 21, can apply for immigrant visas will depend on the category of your approved petitions. Some categories allow your spouse and minor unmarried children to apply for immigrant visas. Other categories will not allow your spouse and minor unmarried children to apply for immigrant visas.

Unfortunately, your category does not allow your spouse and children to apply for immigrant visas.

[Arik G 0]

"Based on" and "may" are the operative words. USCIS could have worded it better.

Replace "Based on" with "Depending on" because they are essentially the same thing. Replace "may" with "may or may" because "may" is not as definite as the word "can" or "will be able to."

Depending on the approved petition, your spouse and minor unmarried children, younger than 21, may or may not apply for immigrant visas with you.

Whether your spouse and minor unmarried children, younger than 21, can apply for immigrant visas will depend on the category of your approved petitions. Some categories allow your spouse and minor unmarried children to apply for immigrant visas. Other categories will not allow your spouse and minor unmarried children to apply for immigrant visas.

Unfortunately, your category does not allow your spouse and children to apply for immigrant visas.

Thanks, it is all clear now. Well... this changes all our strategy, so have to rethink the process all over.

[Ryan H 3,790]

"Based on" and "may" are the operative words. USCIS DOS could have worded it better.

The statement from the site that was quoted was not from USCIS, it was from the State Department.

[purpleghost 1]

In similar situation. Parents petition almost concluded and we hope they will file for siblings back in home country once they arrive in the US. 1 is less than 21 (will be 21 late 2013) and other is over - both unmarried. What is the best route to take to have them in the US in less time. Such a pain to have them alone living in home country...

Edited May 4, 2012 by daikku

[NigeriaorBust 4,087]

Why do you think it is less than a year ? Your parents would be LPR , minor children of LRP's are a F2a visa's and the bulletin says 2009 for priority date, your would age out by the time you become current.

[purpleghost 1]

Why do you think it is less than a year ? Your parents would be LPR , minor children of LRP's are a F2a visa's and the bulletin says 2009 for priority date, your would age out by the time you become current.

Never said it is less than a year. All I did was state ages of the siblings if it helps to understand the situation. That is, one is 21 late 2013 and other is already over 21.

Edited May 4, 2012 by daikku

[milimelo 4,191]

Daikku - the only thing you can do is make sure siblings remain UNMARRIED. Marriage gets them out of the F2A/F2B category and there is no category for married sons/daughters of LPRs (only for USCs - F3).

[purpleghost 1]

many thanks @milimelo