Understanding the Following-to-Join Rule (4),
A Spouse or Child applying for adjustment of status to lawful permanent resident status after principal obtaining immigrant visa through Consular Processing
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 exists before the principal becomes an LPR and still exist when spouse or child applies forLPR status, 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, and the principal’s spouse or child, who did not apply for an immigrant visa at the same time with the principal, has been admitted to the U.S. in a valid nonimmigrant status and wants to applyfor a LPR status.
II. The Following-to-Join Rule and Adjustment of Status
For example, Ashley’s sister filed an I-130 petition for her twenty years ago. Later, Ashley was married to her current spouse and had their child. However, when the immigrant visa became available, Ashley’s spouse and child did not join Ashley in applying for an immigrant visa at a consulate abroad, for they do not want to interrupt child’s thenprimary school education in their home country. Ashley alone was admitted to the U.S. as an LPR.
Now, Ashley’s child has finished the middle school program, and her spouse and child want to meet her quickly. They choose tobe admitted to U.S. in nonimmigrant visas and plan to apply for LPR statuses in the U.S. Neither of them independently qualifies for an immigrant status and the availability of an immigrant visa. Ashley, 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-130 petition for Ashley (principal beneficiary) under the following-to-join rule. Instead, they are also classified under F4 and receive the same priority as Ashley. When immigrant visas for F4 category are still or become available, they can file I-485 application as derivative applicants to adjust their statuses to LPR statuses.
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 adjustment of status, they may qualify as derivative beneficiaries of an approved immigration petition for the principal beneficiaries if eligible, and adjust their status to LPR 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 principal becomes an LPR and still exists, and principal is still alive and remains an LPR.
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(03/13/2025)