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No principal, no derivatives

IMMIGRATION CORNER - Michael J. Gurfinkel (The Philippine Star) - April 18, 2021 - 12:00am

When a person is petitioned for a green card, they are called the “principal beneficiary.” In some cases, the petition includes their spouse and minor children, who are called “derivative beneficiaries.” The derivative beneficiaries can either “accompany” the principal beneficiary or can later “follow to join.”

Derivative beneficiaries cannot be issued their visas unless the principal beneficiary is qualified/eligible for an immigrant visa. These situations might include:

• The principal beneficiary dies. Derivatives cannot pursue their visa when the principal beneficiary dies. However, if the petitioner dies, they may apply for Humanitarian Revalidation of their 1-130 petition. (There is an exception under Section 204(l), which I call the “Survivor Law,” where if the family members are in the US when the principal beneficiary dies, it could be possible for the derivatives to still pursue green cards, despite the death of the principal beneficiary. But if they are outside the US, the Survivor Law would not apply.)

• The principal beneficiary has been convicted of a drug crime or some other crime for which no waiver or relief is possible. Under immigration law, if a person has been convicted of a “controlled substance violation” or drug violation, they are not eligible for an immigrant visa. If they happen to be the principal beneficiary, then the derivatives are also out of luck. For example, the principal beneficiary may have been convicted of some drug violation related to shabu. In that case, they would not be eligible for a visa, nor would their derivative family members.

• The principal beneficiary committed fraud. In that case, the principal beneficiary would need to obtain a fraud waiver to clear his/her name of the fraud, so that a visa could be issued for them and therefore for their derivative family members as well.

If you have a case where the principal beneficiary has some violation, inadmissibility or impediment to having their visa issued, and they have derivatives, you may want to consult with an attorney who can evaluate the situation and could determine if there could be a way to salvage the case so that the principal beneficiary could be eligible for the immigrant visa and the derivatives could be as well. But unless the principal can be issued a visa, derivatives cannot be issued a visa, except under the Survivor Law.

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