Immigration Status of Children Born, Adopted or Added After a Form I-130 Approval
Children of foreign nationals often come to the U.S. as derivatives of the petition filed for the foreign national parent. This means that the U.S. sponsor does not need to submit a separate I-130 petition for each child. They simply need to list their names on the petition for the foreign national parent. However, each child must file their visa application separately after USCIS approves the I-130 petition. Read more here about when children of foreign nationals may have derivative status.
Sometimes a child will be born, adopted, or otherwise added to the family after USCIS approves the I-130 petition. This is especially likely when the foreign national faces a long wait before applying for a visa. The U.S. sponsor may wonder whether they can add the child to the petition after approval, or whether they need to file a new petition. This would force the child to immigrate later than the rest of the family, based on the later filing date of the petition. However, a child born to the foreign national after the I-130 is approved but before their visa is approved can come at the same time as the other family members. The foreign national will need to provide the child’s birth certificate and the I-130 approval to the consular official.
Adding Stepchildren or Adopted Children
A stepchild who joined the family after the approval of the I-130 can come with the rest of the family if they were under 18 when the foreign national beneficiary married the stepchild’s biological parent. The new spouse of the beneficiary also can come with the rest of the family. A child who was adopted after the approval of the I-130 can come at the same time if they were under 16 when they were adopted, and the beneficiary has held physical and legal custody of them for at least two years. (The age requirement rises from 16 to 18 if the beneficiary adopted a sibling of the adopted child as well.)
Adding Illegitimate Children
An illegitimate child of a female foreign national beneficiary can come with the beneficiary if they are born after the approval of the I-130. An illegitimate child of a male foreign national beneficiary can come with the beneficiary if the foreign national can show that they have maintained a good-faith parental relationship with the child. Otherwise, the male foreign national can legitimate the child. This involves officially acknowledging that the child legally belongs to them under the law of the place where the child lives or the place where the father lives. Legitimation must happen before the child turns 18, and the adult legitimating the child must have legal custody over them at the time.
If a male foreign national beneficiary is not the biological father of a child, such as when their spouse had a child from an affair, they also can legitimate that child and bring them to the U.S. together.
Other Factors to Consider
Since a foreign national may need to wait several years for a visa, the child may age out of their eligibility for the visa during that time. If the child was born after the I-130 approval and is now 21 or older, they no longer will qualify as a derivative in many cases. (There are some exceptions under the Child Status Protection Act.) Or the child may lose their eligibility if they get married before the visa is approved.
If the foreign national beneficiary dies, the child will not be able to get an immigrant visa as a derivative. The U.S. sponsor will need to file a new I-130 petition, and the child will need to be a derivative of another family member, if such a family member exists. If the foreign national beneficiary gets divorced during the waiting period, their stepchildren will lose their derivative status unless they can show that they have maintained an ongoing relationship with the beneficiary after the divorce. Biological children of a divorced beneficiary do not lose their derivative status.
If you become a U.S. citizen between the approval of the I-130 and the visa application of your foreign national spouse, your spouse and your child would become immediate relatives. Derivative beneficiaries are not allowed in the immediate relative category. You would need to file a new I-130 petition for the child, but the wait should be brief because immediate relatives get priority.