Overview

"Accompanying" is a term of art. An alien derivative can be defined as "accompanying" the principal if he or she entered the United States in the personal company of the principal, or if the derivative is issued an immigrant visa within four months of either the principal’s date of visa issuance, adjustment of status, or personal appearance and registration before a consular officer abroad to confer alternate foreign state chargeability or immigrant status upon a spouse or child. "Following to join" "applies to a spouse or child who derives immigration status and a priority date from a principal applicant spouse or parent" as defined by the statute. There is no time limit for a follow-to-join beneficiary to seek visa issuance and admission.

Retaining the principal alien’s priority date is one of the main reasons that "accompanying" or "following to join" is preferable to filing a separate visa petition. The derivative can use the principal immigrant’s priority date regardless of the length of time between admission of the principal and visa issuance to the beneficiary. Also, derivatives can follow to join even though that they were not named on the principal’s visa petition. Moreover, a derivative beneficiary does not have to actually "join" the principal in the United States; he or she can reside anywhere in the United States.

Legislation adopted in 1986 imposed certain restrictions on immigration benefits obtainable through marriage to a U.S. citizen or a resident alien. Those restrictions do not apply, however, to the spouse or child of a preference immigrant who obtains derivative status upon the approval of the principal alien’s visa petition under one of the preference categories.

Employment and Family-Based Immigrants

Relationship Requirements

To be eligible to accompany or follow to join, a few criteria must be met. The spouse and/or child must meet the statutory definition of "spouse" and/or "child." This precludes, for example, children who are married, unmarried children over the age of 21, spouses joined by proxy marriages that have not been consummated, and homosexual spouses.

The requisite spousal or parental relationship must have existed before the principal alien’s admission to the United States. Thus, a child who is adopted after the principal’s admission does not qualify for this benefit. However, a child qualifying as an adopted child under INA § 101(b)(1)(E) after the principal alien’s admission but who was adopted and was a member of the principal alien’s household before the adoptive parent’s admission to the United States, is considered to have been acquired before the principal alien’s admission.

Children and spouses acquired between the time of visa issuance and an alien’s admission are eligible for these benefits. And a child born of a marriage that existed at the time of the principal alien’s admission is considered to have been acquired before the principal alien’s admission.

In addition, the requisite spousal or parental relationship must persist both at the derivative’s visa issuance and his or her admission to the United States. Thus, a qualifying familial relationship that is terminated due to death, "aging out," divorce or other events no longer entitles the derivative alien to accompanying or following to join benefits.

A few other timing considerations should be noted. A derivative who precedes the principal alien to the United States cannot be classified as an "accompanying" beneficiary. One appellate court ruled that the statute’s explicit language is designed to ensure that those derivative aliens cannot exercise their right to enter the United States until the principal alien has actually entered. This ruling has since been distinguished by the Board of Immigration Appeals, which held that a derivative cannot precede the principal alien to the United States as an immigrant, but may be eligible to "accompany or follow to join" as a matter of law if he or she preceded the principal to the United States as a nonimmigrant.

Between 1994 and 1997 certain aliens who did not qualify for adjustment of status under INA § 245 nevertheless could do so under INA § 245(i). In November 1997, Congress enacted a law ending § 245(i). The law, however, grandfathers aliens in the United States for whom an immigrant visa petition or labor certification was on file by January 14, 1998, and any spouse or child accompanying or following to join the principal applicant.

The INS has stated orally that spouses or children accompanying or following to join a grandfathered alien are eligible to adjust under INA § 245(i). Therefore, even if the individual was not a spouse or child as of January 14, 1998, he or she can adjust under § 245(i) if he or she is a spouse or child at the time of the principal’s adjustment. The INS has not yet confirmed this position in writing, however.

Parents of intending immigrants or children of derivative children cannot be classified as derivative aliens. It also should be noted that an immediate relative cannot be a derivative on the petition of another immediate relative. As previously stated, those who lose derivative status are no longer eligible to accompanying or following to join benefits. And those who precede the principal alien to the United States as an immigrant are not eligible for these benefits.

Other Immigrants

Those who obtain immigrant status other than through an employment- or family-based visa petition must pay particular attention to the provisions for accompanying and following to join benefits for their spouses and children.

Refugees and Asylees

The derivatives of refugees and asylees are accorded accompanying and following to join benefits. 1998 regulations standardize the INS’s accompanying and following to join policy for refugee and asylee derivatives. First, the refugee’s date of admission into the United States will be used to determine accompany or following to join eligibility. The relationship of the spouse and child must have existed before the refugee’s admission to the United States. This eligibility extends to a child who is in utero on the date of the refugee’s admission.

Second, a separate Form I-730, Refugee/Asylee Relative Petition, must be filed for each qualifying derivative within two years of the refugee’s date of admission, or within two years the asylee was granted asylum. However, there is no time limit imposed on a family member’s travel to the United States once Form I-730 has been approved, provided that the requisite familial relationship still exists. A grandfather clause allows all persons admitted as refugees or granted asylum before February 26, 1998 to file the form by February 28, 2000 regardless of when they were admitted as a refugee or granted asylum. Furthermore, the INS has retained the power to extend individual filing periods for humanitarian reasons.

Third, the new regulations allow only the principal refugee to file Form I-730 on behalf of his or her child(ren) and spouse. Those who derive their status from the principal are not eligible to file Form I-730. Relatives of refugees who are ineligible for accompanying or following to join benefits include: (1) a spouse or child previously granted asylee or refugee status; (2) an adopted child if the adoption took place after the child became 16 years old, or if the child has not been in the legal custody and living with the parents for at least two years; (3) a stepchild if the marriage that created the relationship took place after the child became 18 years old; (4) a spouse if a proxy ceremony was conducted and the marriage was not consummated; (5) a spouse if the INS determines that the principal alien conspired to enter into a sham marriage; (6) or a parent, sister, brother, grandparent, grandchild, nephew, niece, uncle, cousin, or in-law.

Fourth, an asylee’s relationship to a child must have existed at the time of approval of the asylum application for purposes of accompanying or following to join benefits. This eligibility extends to a child who was born after asylum was granted but who was in utero on the date of approval. A principal asylee can request accompanying or following to join benefits for a spouse or child not included in the asylee’s application by filing for each qualifying family member a separate Form I-730, regardless of the status of that spouse or child in the United States.

The INS has recently reinforced its policy that only a person who is the spouse or child of a refugee can be accorded derivative refugee status under INA § 207(c)(2), despite a prior practice in some areas of granting derivative status to persons who lacked a statutory basis for such status.

Procedurally, a separate Form I-730 must be filed for each qualifying family member of a refugee or asylee, including a recent photograph of the family member. The petitioning principal must establish by a preponderance of the evidence that the person for whom he or she is petitioning is an eligible derivative. The evidence required for establishing such a relationship is set forth in the regulations. No fee is charged for filing Form I-730. As previously stated, the relationship must exist at the time the principal asylee’s I-589 approval. If the derivative was not listed on the I-589, the relationship to the principal asylee must be proved on the I-730. It is not clear what happens if the principal alien dies before the INS adjudicates the I-730 form.

Whether the spouse or child is currently present in the United States or resides elsewhere, the INS will notify the principal on Form I-797. This approval remains valid for the duration of the relationship to the refugee, provided that the principal’s status has not been revoked. There is no appeal from the denial of a petition filed on Form I-730, but the principal alien may file a new I-730 if he or she has new evidence to prove the relationship.

The INS has orally stated that if a derivative asylee turns 21, he or she must file a new I-589, which will be adjudicated nunc pro tunc.

Diversity Immigrants

Spouses and children of diversity visa (DV) immigrants are entitled to obtain accompanying or following to join status. However, just as visas for principal DV immigrants are only valid for a single fiscal year, so too derivative DV immigrants must accompany or follow to join the principal DV winner before September 30 of the relevant fiscal year. In addition, only those spouses and children named in the principal’s application qualify for such benefits.

Procedure

If the principal alien is subject to the I-864 affidavit of support requirements, he or she must also complete I-864 for accompanying or following to join family members. The sponsor may submit a photocopy of the I-864 for the accompanying or following to join family members, provided they are listed in Part 3 of Form I-864 and apply for an immigrant visa or for adjustment of status within six months of the date the original I-864 is signed and filed. Following to join applicants who will travel together require one complete set of documents, but all must have individual Form I-864 and Form I-864A, if appropriate, signed and notarized. Accompanying family members traveling with the principal applicant do not need sets of documents but must each have a signed and notarized I-864 from the petitioner.