How does the Immigration and Nationality Act (INA) treat the spouse and child (under 21) of the beneficiary of an immigration petition? What status and benefits does the INA give them?
When a U.S. citizen or lawful permanent resident files a petition for a relative (called “beneficiary” in Form I-130) who is eligible for a preference visa allocation under INA § 203(a), (b), or (c), the spouse or child of such beneficiary shall be entitled to the same status, and the same order of consideration provided under the same subsections, if “accompanying or following to join” the beneficiary. See INA §203(d).
The beneficiary who has a spouse or child is called the “principal alien” meaning an alien from whom another alien derives a privilege or status under the law or regulations. 22 CFR § 40.1(q). The spouse or child is called a “derivative beneficiary”
WHAT CONSTITUTES “ACCOMPANYING OR FOLLOWING TO JOIN”
The law is very specific – in order to be eligible for the same status as the principal alien, the derivative beneficiary must be “accompanying or following to join” the principal alien. “Accompanying or accompanied by” means not only an alien in the physical company of a principal alien but also an alien who is issued an immigrant visa within 6 months of:
(1) the date of issuance of a visa to the principal alien;
(2) the date of adjustment of status in the United State of the principal alien; or
(3) the date on which the principal alien personally appears and registers before a consular officer abroad to confer alternate foreign state chargeability or immigrant status upon a spouse or child. See 22 CFR § 40.1(a)(1).
After 6 months, the spouse or child is not “accompanying” the principal alien but is “following to join” such principal alien.
WHAT IF DERIVATIVE PRECEDES PRINCIPAL ALIEN TO U.S.?
An “accompanying” relative may not precede the principal alien to the United States. 22 CFR § 40.1(a)(2).
A U.S. citizen filed a petition for his married daughter (principal alien) and her husband, Santiago (derivative beneficiary), both Filipinos. Santiago traveled to the U.S. ahead of his wife so that Santiago could earn enough to pay for his wife’s ticket. An immigration officer admitted Santiago in San Francisco without asking where his wife was. When Santiago had saved enough money, he asked his wife to come to the U.S. but his wife’s visa had expired. Santiago then petitioned for her and their children as relatives of a lawful permanent resident. The legality of Santiago’s presence in the U.S. was challenged. The INS determined that Santiago was excludable at entry, and ordered him to voluntarily leave the country or be deported because his visa was invalid since he was not “accompanying or following to join” his wife but had come ahead of his wife. The Court of Appeals affirmed the INS’s decision. Santiago v INS, 526 F.2d 488 (9th Cir. 1975).
The cases of Paglinawan and Catam (both derivative beneficiaries) are similar to Santiago. Their wives were the principal aliens. They were admitted to the U.S. at Honolulu without their wives. The court upheld the INS determination that they were excludable at entry because they were not “accompanying or following to join” their spouses. Santiago v INS, 526 F.2d 488 (9th Cir. 1975).
A Pakistani (principal alien) had a visa as the brother of a U.S. citizen His child, who was also given a visa as a derivative beneficiary, traveled to the United States ahead of his father in order to beat the deadline because the child was turning 21. He told the immigration officer that his father had remained in Pakistan. However, his father had died while he was enroute to the U.S., although the child did not know about the death until he was admitted to the U.S. The Board of Immigration Appeals held that the child was deportable because his immigrant visa was not valid for admission because he was not “accompanying or following to join” his father, but had preceded his father. The Court of Appeals affirmed. The court explained that the term “accompany” according to Webster’s Dictionary means “to go along with” and “to go with or attend as a companion or associate”. Matter of Khan, 14 I&N Dec 122 (BIA 1972); Santiago v INS, 526 F.2d 488 (9th Cir. 1975).
In all these four cases which were consolidated as one before the Court of Appeals, the court rejected the aliens’ argument that the Government should be estopped from asserting their excludability, holding that there was no affirmative misconduct on the part of the immigration officials.
However, there is an exception to the “accompanying” rule. Naulu, a married alien woman, was admitted to the U.S. as a nonimmigrant visitor and did not depart when her authorized period of stay expired. She was ordered deported. Subsequently, her husband gained lawful permanent resident status in the U.S. Naulu sought to reopen the deportation proceedings so that she could apply for adjustment of status. The Board ordered the case reopened, holding that once the principal alien gains permanent residence, his spouse or child already in the U.S. as nonimmigrants can adjust status as a person “accompanying or following to join” the principal even though the spouse or child preceded the principal alien to this country as a nonimmigrant. Matter of Naulu, 19 I&N Dec 351 (BIA 1986).
CAUTION: The relationship between the principal alien and the derivative beneficiary must exist before the principal alien gains permanent resident status as well as at the time the derivative beneficiary seeks entry as an immigrant or applies for adjustment of status. A spouse or child of an alien who is classified as an immediate relative is not eligible for benefits under the “accompanying or following to join” rule but must file a separate visa petition. See Matter of Naulu, 19 I&N Dec 351 (BIA 1986).
RECOMMENDATION: A principal alien should travel to the United States immediately (on the same day if possible) upon receiving an immigrant visa. Damn the expense. Death could overcome you. Woe unto your derivative beneficiaries if you die. You can always go back to the Philippines after your derivative beneficiaries arrive in order to “take care” of the things you were unable to do.
(Atty. Tipon has a Master of Laws degree from Yale Law School where he specialized in Constitutional Law. He has also a Bachelor of Laws degree from the University of the Philippines. He placed third in the Philippine Bar Examination in 1956. His current practice focuses on immigration law and criminal defense. He writes law books for the world’s largest law book publishing company and writes legal articles for newspapers. He has a radio show in Honolulu, Hawaii with his son Noel, senior partner of the Bilecki & Tipon law firm, where they discuss legal and political issues. Office: American Savings Bank Tower, 1001 Bishop Street, Suite 2305, Honolulu, Hawaii, U.S.A. 96813. Tel. (808) 225-2645. E-Mail: [email protected]. Website: www.bileckilawgroup.com. He served as a U.S. Immigration Officer. He is co-author with former Judge Artemio S. Tipon of the best-seller “Winning by Knowing Your Election Laws” and co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Atty. Tipon has personally experienced the entire immigration cycle by entering the United States on a non-immigrant working visa to write law books, adjusting his status to that of a lawful permanent resident, and becoming a naturalized United States citizen.)