What is Following-to-Join?

Aliens who married or had children before the date of obtaining permanent residency can possibly confer “following-to-join” benefits to their family members.

Essentially, through this process, spouses and children will be able to receive green cards quickly. “Following-to join” is not family based immigration, but is similar to a child/spouse receiving derivative benefits based on a primary LPR’s immigration petition.

General Requirements

The requirements below must be met in order for a spouse or child to qualify under “following-to-join”:

First, the legal permanent resident must have adjusted status or obtained an immigrant visa through a preference category (family or employment based) or diversity lottery. Some examples include but are not limited to NIW, EB-1, etc. In addition, a LPR’s visa number must also be current in order for a family member to receive “following-to-join”. 

Second, the petitioner married/had children before becoming a permanent resident and the relationship between the permanent resident and spouse/child is intact at the time of filing. Children of LPRs must be unmarried and under the age of 21. Furthermore, the child/step-child must be from an existing marriage before the LPR obtained permanent residency.

A spouse or child of a permanent resident cannot receive “following-to-join” benefits if the permanent resident got married and/or had children on the date of or after obtaining permanent residency. In this instance, the legal permanent resident would have to file a separate I-130 petition for his/her family members.

What does a LPR need to do if his/her family members qualify?

“Following-to-join” is convenient because it allows primary beneficiaries to do away with filing a separate I-130 for their spouse or child, greatly expediting the green card approval process. Furthermore, spouses and children of LPRs do not have to wait for a visa number to become available. Where a LPR’s spouse or child currently resides affects what procedures he/she needs to follow.

Spouse or child already in the United States

If your spouse and/or child are already in the United States, they may apply for adjustment of status (I-485) based on “following-to-join”.

If your spouse or child is outside of the United States

In this instance, LPRs need to inform a U.S. consulate of their lawful permanent residency status in order for their family members to apply for an immigrant visa.

A legal permanent resident who has family members living abroad can start the “following-to-join” process by submitting the following documents to the same USCIS office that took the most recent action on his/her case:

• Form I-824, Application for Action on an Approved Application or Petition

1. Copy of Form I-551, otherwise known as your green card
2. Proof that your spouse/child is eligible for “following-to-join” benefits
3. Copy of Form I-797, Notice of Action for the original petition
4. Copy of the application for immigrant status

• Aliens who have not yet adjusted status can simultaneously file Form I-824 and Form I-485. In this case, no other supporting documents other than those required for the I-485 are needed.
  
  Once the I-824 is approved, USCIS will notify a U.S. consulate of a petitioner’s LPR status; at which point, family members can then apply for an immigrant visa. This then becomes a matter of consular processing.
  
  Examples of “following-to-join”
  
  Usually, the “following-to-join” process is very straightforward and clients are approved quickly without any complications. Below are some real-life, atypical “following-to-join” cases our firm has worked on in the past.
  
  Example 1
  
  Dr. Xing filed his NIW and I-485 in 2007. His NIW was approved, but his I-485 remained pending. Unfortunately for Dr. Xing, visa numbers retrogressed and he was not able to receive I-485 approval. In 2008, Dr. Xing got married. Dr. Xing retained our firm again in March 2010 to file an EB-1B. Our firm filed his EB-1B in April 2010 with premium processing. His case received a RFE and was then approved in June 2010. That same day, USCIS approved his previous I-485. As a result of this, our firm was not given enough time to file his wife’s I-485 after his EB-1B was approved but before his I-485 was approved. To remedy this issue, our firm suggested that Dr. Xing’s wife file “following-to-join” on the basis of Dr. Xing’s I-485 approval.
  
  Example 2
  
  Dr. Liu retained our firm in May 2007 for both his I-485 and his son Zhang’s I-824 (as his son was living abroad). Prior to retaining our firm, Dr. Liu had already received I-140 approval through a National Interest Waiver; he had a priority date of November 21, 2005. Both Dr. Liu’s I-485 and his son’s I-824 were filed jointly in June 2007 by our firm. In October 2007, USCIS approved Dr. Liu’s I-485. Instead of approving Zhang’s I-824 on the basis of Dr. Liu’s I-485 (visa number was current at the time), USCIS made a mistake and listed Dr. Liu’s priority date as August 2, 2007 (which was not yet current at the time). As a result, Zhang’s I-824 was not approved until December 2008.
  
  Conclusion and current trends affecting “following-to-join”
  
  Typically through “following-to-join” benefits, qualified spouses and children of LPRs are able to receive permanent residency in a few months as opposed to several years, which is potentially how long a family-based petition may take.
  
  However, there is always the possibility that cut-off dates for some employment-based petition categories may retrogress or become completely unavailable. Depending on an alien’s country of origin, filing for a family-based petition may prove faster than “following-to-join”. The July 2010 visa bulletin provides a good example of this type of situation. Right now, cut-off dates for EB-3 recipients are August 15, 2003 for mainland Chinese nationals and November 22, 2001 for Indian nationals. For both countries, the cut-off date for the 2A Family Preference is July 1, 2008. With such retrogression seen lately on the visa bulletin, this means that family members of EB-3 recipients will have to stand by until an EB-3 recipient’s visa number becomes available (even if the number was current at one point in time). Unfortunately, until this number is available, family members of LPRs will not be eligible to receive an immigrant visa. Therefore, in this instance, it would be beneficial for an EB-3 recipient to apply for both “following-to-join” benefits as well as a family petition, which will not only increase the chance of approval, but may ultimately be faster in the end. With the unpredictable movement of cut-off dates, there is no way to be certain, so we do think it is best to sit down with a legal professional to discuss your options.      
  
  Again, as there are intricate legal matters involved in determining eligibility and proper timing of applying for “following-to-join” benefits, the first step is to meet with an experienced attorney. Through legal consultation, our firm will not only help you and your family gather the appropriate documentation, but will also help you decide the best course of action.