lucasmelo152

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.

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?

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?

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 Thanks a lot for you guidance and further information!

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 🙏🏼🙏🏼