Understanding the Following-to-Join Rule (3)
A Spouse or Child applying for immigrant visa abroad joining principal’s immigrant visa application
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 ruleprovides 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 foran immigrant visa, and the principal should remain in LPR status at the time of the application. Specifically, the relationship means the marriage to spousefor a derivative spouse and parent-child relationship for a derivative child.
Here, we analyze a situation where a principal has applied for an immigrant visa at a consulate abroad and been admitted as an LPR, that is, consular processing. Meanwhile, the principal’s spouse or child, who did not apply for the visa at the same timewith the principal, lives outside the U.S. and wants to apply for an immigrant visa through consular processing.
II. The Following-to-Join Rule and Consular Processing
For example, Catherine filed an I-140 EB2 NIWpetition for herself years ago. Later, Catherine was married to her current spouse and had their child. However, when the immigrant visa became available, Catherine’s spouse and child did not join Catherinein applying for an immigrant visa at a consulate abroad, for they did not want to interrupt the child’s then middle school education in their home country. Catherine alone was admitted to the U.S. as an LPR.
Now, Catherine’s child has finished the middle school program and her spouse and child want to apply for immigrant visas to unite her. Neither of them independently qualifies for an immigrant status and the availability of an immigrant visa. Catherine, 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 EB2NIW petition for Catherine (principal beneficiary) under the following-to-join rule. Instead, they are also classified under EB2 and receive the same priority as Catherine. When immigrant visas for EB2 category are still or become available, they can apply for their immigrant visas at a U.S. consulate abroad.
Given that Catherine’s spouse and child did not accompany when Catherine was applying at a consulate abroad for an immigrant visa, the Department of State (DOS) hasno idea of whether or when the spouse or child will follow to join Catherine—whether it is one year later or several years later.
Therefore, when Catherine’s spouse and child decide to apply for immigrant visas to unite her, Catherinemust notify a U.S. consulate of her spouse and child’s intention and inform it thatshe has been admitted as an LPR.
Since Catherine has receivedher immigrant visa at a consulate, the DOS National Visa Center (NVC) maintains complete records regarding her visa application to facilitate the processing of following-to-join beneficiaries. Catherine can help file EB2 immigrant visa applications for her spouse and child in the CEAC system. Catherine should ensure that her original application in CEAC does not terminate, by contacting the NVC at least once a year.
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 isthe 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)