Understanding the Following-to-Join Rule (2)
A Spouse or Child applying for immigrant visa abroad, whose principal has adjusted the status in the U.S.
I. Review of the Following-to-Join Rule
In a previous article, we introduced the allocation of immigrant visas and how a spouse and child of a lawful permanent resident (LPR) can file an I-485 application as a derivative applicant without a separate I-130 petition in advance under the following-to-join rule.
The following-to-join rule provides that a spouse or child, if does not independently qualify for an immigrant status and the availability of an immigrant visa, can receive the same immigration status and priority as principal through following-to-join.
Further, to be an eligible spouse or child, the relationship to the principal should exist before the principal becomes an LPR and still exist when spouse or child applies for an immigrant visa, and the principal should remain in LPR status at the time of the application. Specifically, the relationship means the marriage to spouse for a derivative spouse and parent-child relationship for a derivative child.
Here, we analyze a situation where a principal has obtained LPR status by filing an I-485 application before, and the principal’s spouse or child, who did apply the application at the same time with the principal, lives outside the U.S. and wants to apply for an immigrant visa at a U.S. consulate abroad, that is, consular processing.
II. The Following-to-Join Rule and Consular Processing
For example, Bella’s employer filed an I-140 EB3 petition for her years ago. Later, Bella was married to her current spouse and had their child. However, when the immigrant visa became available, Bella’s spouse and child did not file I-485 applications as derivative applicants to adjust their statuses as Bella did, for Bella’s spouse had just finished a J-1 exchange program and was required to return to their home country for two years, along with the J-2 child.
Now, Bella’s spouse and child are no longer subject to the home-country physical presence requirement, and want to apply for immigrant visas to unite Bella. Each of them does not independently qualify for an immigrant status and the availability of an immigrant visa. Bella, an LPR now, does not need to file an I-130 for them, since they are in fact still derivative beneficiaries of the previously approved I-140 EB3 petition for Bella (principal beneficiary) under the following-to-join rule. Instead, they are also classified under EB3 and receive the same priority as Bella. When immigrant visas for EB3 category are still or become available, they canapply for their immigrant visas at a U.S. consulate abroad.
Given that Bella’s spouse and child did not accompany when Bella filed an I-485 to adjust status to LPR status in the U.S., U.S. Citizenship and Immigration Services (USCIS) or the Department of State (DOS) has no idea of whether or when the spouse or child will follow to join Bella—whether it is one year later or even several years later.
Therefore, when Bella’s spouse and child decide to apply for immigrant visas to unite her, Bella must notify a U.S. consulate of her spouse and child’s intention and inform it that she has obtained LPR status.
Since Bella has applied for LPR status within the U.S., she should file Form I-824, Application for Action on an Approved Application or Petition, to request that USCIS notify a consulate abroad about her adjustment of status. USCIS will then transmit her record to the designated consulate. After that, the spouse or child can apply for an EB3 immigrant visa in the CEAC system.
III. Conclusion
While usually a spouse or child of an LPR is required to have an approved I-130 petition for them before they can apply for an immigrant visa, they may qualify as derivative beneficiaries of an approved immigration petition for the principal beneficiary if eligible, and apply for an immigrant visa without a separate I-130. Immigration laws provide several conditions for the eligibility of following-to-join, that is the spouse or child does not otherwise qualify for an available immigrant visa, the relationship to the principal exists before the principal becomes an LPR and still exists, and principal is still alive and remains an LPR.
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(03/13/2025)