Accompanying and Following to Join: An Overview
Accompanying and Following to Join: An Overview
The Immigration and Nationality Act (INA) provides that the spouse or child of a preference immigrant can often "accompany" or "follow to join" the principal alien. What exactly that means, however, and in what contexts the concepts operate, can be confusing. This article provides an overview on this topic.
Overview
"Accompanying" is a term of art. An alien derivative can be defined as "accompanying" the principal if he or she entered the United States in the personal company of the principal, or if the derivative is issued an immigrant visa within four months of either the principal’s date of visa issuance, adjustment of status, or personal appearance and registration before a consular officer abroad to confer alternate foreign state chargeability or immigrant status upon a spouse or child. "Following to join" "applies to a spouse or child who derives immigration status and a priority date from a principal applicant spouse or parent" as defined by the statute. There is no time limit for a follow-to-join beneficiary to seek visa issuance and admission.
Retaining the principal alien’s priority date is one of the main reasons that "accompanying" or "following to join" is preferable to filing a separate visa petition. The derivative can use the principal immigrant’s priority date regardless of the length of time between admission of the principal and visa issuance to the beneficiary. Also, derivatives can follow to join even though that they were not named on the principal’s visa petition. Moreover, a derivative beneficiary does not have to actually "join" the principal in the United States; he or she can reside anywhere in the United States.
Legislation adopted in 1986 imposed certain restrictions on immigration benefits obtainable through marriage to a U.S. citizen or a resident alien. Those restrictions do not apply, however, to the spouse or child of a preference immigrant who obtains derivative status upon the approval of the principal alien’s visa petition under one of the preference categories.
Employment and Family-Based Immigrants
Relationship Requirements
To be eligible to accompany or follow to join, a few criteria must be met. The spouse and/or child must meet the statutory definition of "spouse" and/or "child." This precludes, for example, children who are married, unmarried children over the age of 21, spouses joined by proxy marriages that have not been consummated, and homosexual spouses.
The requisite spousal or parental relationship must have existed before the principal alien’s admission to the United States. Thus, a child who is adopted after the principal’s admission does not qualify for this benefit. However, a child qualifying as an adopted child under INA § 101(b)(1)(E) after the principal alien’s admission but who was adopted and was a member of the principal alien’s household before the adoptive parent’s admission to the United States, is considered to have been acquired before the principal alien’s admission.
Children and spouses acquired between the time of visa issuance and an alien’s admission are eligible for these benefits. And a child born of a marriage that existed at the time of the principal alien’s admission is considered to have been acquired before the principal alien’s admission.
In addition, the requisite spousal or parental relationship must persist both at the derivative’s visa issuance and his or her admission to the United States. Thus, a qualifying familial relationship that is terminated due to death, "aging out," divorce or other events no longer entitles the derivative alien to accompanying or following to join benefits.
A few other timing considerations should be noted. A derivative who precedes the principal alien to the United States cannot be classified as an "accompanying" beneficiary. One appellate court ruled that the statute’s explicit language is designed to ensure that those derivative aliens cannot exercise their right to enter the United States until the principal alien has actually entered. This ruling has since been distinguished by the Board of Immigration Appeals, which held that a derivative cannot precede the principal alien to the United States as an immigrant, but may be eligible to "accompany or follow to join" as a matter of law if he or she preceded the principal to the United States as a nonimmigrant.
Section 245(i)
Between 1994 and 1997 certain aliens who did not qualify for adjustment of status under INA § 245 nevertheless could do so under INA § 245(i). In November 1997, Congress enacted a law ending § 245(i). The law, however, grandfathers aliens in the United States for whom an immigrant visa petition or labor certification was on file by January 14, 1998, and any spouse or child accompanying or following to join the principal applicant.
The INS has stated orally that spouses or children accompanying or following to join a grandfathered alien are eligible to adjust under INA § 245(i). Therefore, even if the individual was not a spouse or child as of January 14, 1998, he or she can adjust under § 245(i) if he or she is a spouse or child at the time of the principal’s adjustment. The INS has not yet confirmed this position in writing, however.
Those Ineligible to Accompany or Follow to Join
Parents of intending immigrants or children of derivative children cannot be classified as derivative aliens. It also should be noted that an immediate relative cannot be a derivative on the petition of another immediate relative. As previously stated, those who lose derivative status are no longer eligible to accompanying or following to join benefits. And those who precede the principal alien to the United States as an immigrant are not eligible for these benefits.
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