I-130 mistakenly filed for derivative child already listed on principal-mother's I-130

R

Rynio

New Member
Hi,
An extra I-130 petition was filed for a derivative minor child of U.S. Citizen despite the fact that child was already included on mother's I-130 as immediate family member. All AOS forms were sent 3 months ago for them along with that extra mistaken I-130 for derivative child. Is that a problem? I have heard from one of the legal-answer chats Sites that USCIS does not prohibit filing I-130 form for derivatives even though it is not necessary for derivative children of U.S. Citizens who already live with a principal immigrant (mother and wife of US Citizen) here in the USA, but I am not sure anymore, and don't know what to do? Can anyone comment here?
 
I’m a little confused at your terminology/situation, but there are no derivatives on petitions for immediate relative classification (parent, spouse or child of US citizen). Each person needs their own petition.
 
Hi,
Thank you for your response. So, the instruction to I-130 petition under the section: "Who may file I-130/ Note: Item 5" (as well as some other legitimate other sites sources) says (quote): "you are not required to file separate petitions for the beneficiary’s unmarried children under 21 years of age. They are considered derivative beneficiaries and you should list them in Part 4. of this petition.” (end of quote).
In other words, if immediate family members of U.S. Citizen, (like minor children under 21 years old) of the principal immigrant, (such as mother), are also immigrating with her at the same time and are already listed on her petition I-130 under Part 4 as such immediate members of family - they are already considered derivative members and do not need to have separate I-130 petitions filed for them.
However, in this case a child was listed on mother's I-130 petition of course, but additionally by error an extra I-130 petitions was also filed for him and attached to the same family AOS application package along with other AOS required applications for each individual family member/ beneficiary as required including that minor child like: I-485, I-765, I-864 and so.
Therefore, my question was if this will not be a problem? As said above under my beginning post, that I have learned from one of the so called "Legal-Answer-Sites" from verified lawyer answered (but most likely not a immigration kind of lawyers) that supposedly USCIS does not prohibit filing additional I-130 Petitions for derivative children, however, on the other hand, they are not needed at all. And now I am not sure and worried if filing that additional I-130 forms for so called derivative child which wasn't needed at all in addition to mother's I-130 already containing that child as immediate family member will create any issue?
Thank you for sharing your opinion.
 
The I130 form covers a variety of different categories of family-based immigration, and not all questions are relevant to every type of petitioner. There are categories where you can have derivative beneficiaries. Immediate relatives of USCs (IR or CR categories) are NOT one of those. This isn’t an opinion. It is fact. So you did the right thing filing separately for the child.
 
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To save you trouble reading all these sometimes dubious websites again, here it is direct from USCIS.

If you are the spouse or child of a U.S. citizen’s immediate relative, you must independently qualify for a Green Card and file your own application. You cannot qualify for a Green Card as the derivative beneficiary based on the immediate relative’s application.
https://www.uscis.gov/green-card/green-card-eligibility/green-card-for-immediate-relatives-of-us-citizen#:~:text=If%20you%20are%20the%20spouse,on%20the%20immediate%20relative's%20application.
 
Hi again,
Thank you, but not exactly. I think I have already checked into this issue. What you are quoting is that you can apply to become "Green Card Holder" based on proper relationship with U.S. Citizen. However, when filing AOS Applications for family of U.S. Citizen already living in the U.S.A. a requirement is that all required AOS Forms are needed for all beneficiaries family members including immigrating minor children of U.S. Citizen, but for minor children, as per USCIS written I-130 instruction and other sources there is no need to file extra I-130 Petitions as long as they are included on mother's (principal immigrant's) I-130 as immediate family members (so called derivatives) and are under 21 years old plus unmarried and immigrating around the same time. The only question I have is if there would be any problem if mistakenly extra I-130 petition was also included for the minor child (that is derivative as per their instructional term) despite that the child was also already included on mother's I-130 in section for "immediate family member" which automatically makes that child "derivative" who can share one I-130 petition with principal immigrant mother.
INSTRUCTION TO FORM I-130 / page 1/ item 4 (quote): "...you are not required to file separate petitions for the beneficiary’s spouse or unmarried children under 21 years of age. They are considered derivative beneficiaries and you should list them in Part 4. of this petition. (end of quote).
DEFINITION of DERIVATIVE IMMIGRANT (from State Department Site) (quote): "What is a derivative family member? - A “derivative” visa applicant is the spouse or minor unmarried child (younger than age 21) of the beneficiary of an immigrant petition. Derivative family members can apply for immigrant visas with the beneficiary, who is considered the “principal” applicant. (end of quote).

From what I have preliminarily learned from some verified lawyer answering questions on one of those legal-answer Sites when asking is that (quote): "it is not forbidden to file extra I-130 even for derivative child, although unnecessary".
Nevertheless, I am not sure if he is 100% right since I don't know if that lawyer specializes in immigration cases, and hence my concern now?
- Regards.
 
Got you. Absolutely no aggravation. I was just trying to point out my position supported by quoting the official instructions provided on the topic. And the rest of course is the matter of interpretation in the light of those instructions. Nevertheless, thank you for your willingness to participate in the conversation.
 
What SusieQQQ said is absolutely correct. The statute that provides for derivative beneficiaries only provides it for the family preference categories (F1, F2A, F2B, F3, F4), employment-based categories (EB1, EB2, EB3, EB4, EB5), and Diversity Visa. Derivative beneficiaries are not possible in the Immediate Relative category (spouse, parent, or unmarried under-21 child of a US citizen), except for the child of a widow(er). This is a very basic fact about how derivative beneficiaries work. There is nothing "mistaken" about filing a separate I-130 for the child.

See 9 FAM 502.2-2(B).d(1):
d. (U) Derivative Immediate Relative Status for Spouses or Children:

(1) (U) The INA does not generally accord derivative status for family members of immediate relatives as it does for preference applicants. (INA 203(d) does not apply to the classes described in INA 201(b)). A U.S. citizen must file separate IR petitions for the spouse, each child, and each parent.
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Information for SusieQQQ and Newacct:

First of all would like to apologize. It seems like you were all correct in this case regarding I-130 petition being necessary to file for all members of the "Immediate Family of U.S. Citizen" category. A funny thing is that you ask questions, pay for it on some of the so-called "legal answering sites" with verified lawyers answering you, also you specify that it is about "U.S. Citizen petitioner sponsoring his wife and minor child already living in U.S.A with him, and they make you think like you have a choice to file I-130 for any child of the petitioner who becomes derivatives, - whereas this is a MUST tin his case and not a choice for Immediate Family Members of petitioning U.S. Citizen, as opposed to petitioning U.S. Green Card holder with different preference category. Therefore, it looks like quite often you can learn a lot more from Immigration Forum members like this one than from so called "professional" sites. Thank you both again for your kind help!!! Good knowledge here!

There is perhaps just one more question that possibly you could help: - USCIS just sent a letter requesting extra form I-864 for a child who was already listed on mother's (principal immigrant) I-864 under section as: "family member immigrating at the same time" with her.
So, should that I-864 additional form requested for minor child now be completed in child's name as for "principal intending immigrant" under the circumstances, or rather in mother's name again who is actually a principal immigrant, and the child only listed there again under "family members immigrating at the same time"?
I trust this will receive your consideration if you can help.
Kind regards.
 
Rynio said:
There is perhaps just one more question that possibly you could help: - USCIS just sent a letter requesting extra form I-864 for a child who was already listed on mother's (principal immigrant) I-864 under section as: "family member immigrating at the same time" with her.
So, should that I-864 additional form requested for minor child now be completed in child's name as for "principal intending immigrant" under the circumstances
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Yes, you need a separate I-864 for each I-130. I-864 Part 4 item 2 says "Do not include any relative listed on a separate visa petition."

However, if this is a biological child of the US citizen (not a stepchild), and the child gets a green card before turning 18, and is living in the US with the US citizen, then the child automatically becomes a citizen upon getting a green card, and would not need an I-864. Since you are doing AOS, you should have indicated the exemption on I-485 Part 3 item 1.b. (On older editions of I-485 it would have been indicated by including I-864W.)

If this is a stepchild of the US citizen, then you would need a separate I-864 for the child's I-130, with the child being the principal beneficiary.
 
I see. Thank you, and please correct me if I am wrong: - Since it was an older version of I-485 from the end of 2024, because the new one started with the beginning of 2025, so I understand that if the child is minor stepchild, then requested I-864 should be filed now for him with him being as principal immigrant on it despite him already being listed on filed mother's I-864 application under "family members". Correct?
And if the child is actually a biological child then what should be filed now as the requested I-864 Form for the child since I-485 was already filed for him at the end of December, 2024, and I-864-W wasn't filed at the time, and it is no longer available since there is a new version of I-485 now which has that option in Part 3 item 1.b.? And refiling any I-485 for the child to which USCIS has no objection and only wants that I-864 would seem not a good step? Now what's the best way to get out of this?
I am saying about two different options for biological child and stepchild since I am helping here a present friend of mine to solve this issue and I am not sure about child relationship status, but probably biological child.
Thank you so much.
 
However, to my knowledge any older versions of outdated immigration forms are not accepted anymore, and would/ could be rejected on the spot when filed now.
Wouldn't simply filing the I-864 application in both cases, i.e. in whichever status the child has in terms of the relationship with the father, with child being as principal immigrant be a better option?
 
May I also ask the following:
Should a MINOR biological child of U.S Citizen, - and who is an immediate family member of U.S. Citizen, and who never opted out to be exempted from I-864 - be shown on his I-864 application as principal immigrant?
Thank you.
 
If it's the minor biological child of a US citizen, they are entitled to be exempt from I-864. Either you file the old I-485 (i.e. editions 08/28/24 or earlier; the edition date is in the lower-left corner) with the I-864W, or the new I-485 (i.e. editions 10/24/24 or later) without I-864W. If you submitted the old edition of I-485 and they gave you an RFE, I see no problem with submitting an I-864W, even though it is no longer used with current editions of I-485.

It doesn't really make sense to submit an I-864 for someone who is exempt, but if you insist, yes, the child would be the principal beneficiary, since they are the principal beneficiary of the I-130.
 
Thank you "newacct" for all your great help. You do remove a lot of frustration and confusion, and you do have an extended knowledge in the are of immigration.
I am not trying to flatter you, but I am tempted to think that you are either an immigration attorney, perhaps a retired one, or former immigration officer, or otherwise a very bright person with a great passion for the subject and a wide knowledge in this area.. In any case your help is invaluable to another bewildered person in need.
 
Hello nawacct or otherwise anyone:

I have one question,
Will denied I-765 filed for EAD (filed concurrently with I-485) and which I-765 was rejected because of mistakenly put category C-10 in the application I-765 instead of C-9 for family based, and after correcting it and mailed with new I-765 with proper category placed C-9 this time plus written explanation attached to it explaining of what happened, was rejected again, but denied this time for good because of "luck of proper evidence for C-10" (just like someone never followed the explanation about mistake and included correction) - will this have any impact on already approved I-485 and interview already scheduled for next month?
I have found somewhere on the Net that supposedly this application "permit to work" is advisable, but not mandatory otherwise, and independent of I-485 and should have no impact on already improved I-485 under such circumstances, but I am not sure anymore?
So, maybe it will have no impact on this (family based - marriage with U.S.) interview - that is already scheduled in 2 weeks despite this recent denial of I-765, and if will passed that interview, then the "Green Card" would be warranted, which will already allow working, anyways???!!
I am not sure anymore?
I appreciate your answer, please.
Thank you.
 
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Rynio said:
Hello nawacct or otherwise anyone:

I have one question,
Will denied I-765 filed for EAD (filed concurrently with I-485) and which I-765 was rejected because of mistakenly put category C-10 in the application I-765 instead of C-9 for family based, and after correcting it and mailed with new I-765 with proper category placed C-9 this time plus written explanation attached to it explaining of what happened, and rejected again, but denied this time for good because of "luck of proper evidence for C-10" (just like someone never followed the explanation about mistake and included correction) - will it have any impact on already approved I-485 and interview already scheduled for next month?
I appreciate your answer.
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No, I-765 denial has no effect on I-485
 
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