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Judith
Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 28197
Experience:  34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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My wife is a U.S. citizen, as am I. Her sister,

Customer Question

My wife is a U.S. citizen, as am I. Her sister, brother-in-law and their family are Vietnamese nationals living in Vietnam. They have two children: a 15-year old girl and an 11-year girl. My wife is considering petitioning for her sister to come to the United States as an immigrant relative. Her two children would be "derivative beneficiaries" of that petition, though it is very likely they would not be eligible for Green Cards until after they turned 21, and thus would have to start the process all over again as adult children of their mother (if and when she is admitted to the U.S.).
Both of the children would like to come to the United States eventually for college, so my specific question is this: in your experience, will it be more difficult for them to be approved for student visas if they have an immigrant-based visa application on file, even one that is unlikely to result in them receiving visas until they are much older, if at all?
We do not want to prejudice their ability to get student visas by applying for an immigrant visa that they may never get anyway.
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Judith replied 1 year ago.

specific question is this: in your experience, will it be more difficult for them to be approved for student visas if they have an immigrant-based visa application on file, even one that is unlikely to result in them receiving visas until they are much older, if at all? We do not want to prejudice their ability to get student visas by applying for an immigrant visa that they may never get anyway.

Hello my name is ***** ***** I am delighted to answer your questions today. I have 35 years experience as an immigration lawyer.

If you file a petition for your sister the children are not beneficiaries of a direct petition, they as you know would be considered derivative beneficiaries.

It would not be more difficult for the children as derivative beneficiaries who will most probably be aged out to obtain a student visa because a petition is pending for their parent.

That being said, a consular officer has absolute discretion is determining intent to return and if they want to be unreasonable in making a finding that a pending petition for the parent reflects on the child's intent to return and makes them an intending immigrant, that risk does exist and is totally out of anyone's control other than not having a petition on file.

However, that would lack of petition would still not guarantee a visa being issued. There are no guarantees.

My goal is to provide you with excellent service – if you feel you have received anything less, please reply back as I am happy to address follow-up questions. Understand, it is my job to be honest and truthful about the law and sometimes the law does not give you the solution or options you want. Kindly give me a positive rating when you are done. If you feel I earned a BONUS, I am grateful. In the future, you may begin your questions with “FOR JUDITH” and I will be your personal immigration expert.

Judith

Customer: replied 1 year ago.
Thanks, Judith. I guess this means that, while there are no guarantees, you would not think it places the student visa applicant at greater risk for denial by virtue of a parent's immigrant petition, is that correct? Also, can I ask one follow-up question: If we chose to do this, is there a means by which to exclude "derivative beneficiaries" such as these children from an immigrant visa petition for their parent, or is it simply automatic?
Expert:  Judith replied 1 year ago.

I guess this means that, while there are no guarantees, you would not think it places the student visa applicant at greater risk for denial by virtue of a parent's immigrant petition, is that correct?

CORRECT

No you cannot "exclude" derivative beneficiaries from the petition. The law automatically includes them and only the age out provision excludes them from eligibility.

If they are not named the USCIS or DOS can allege misrepresentation for not giving the information requested on the petition. They can say you withheld to benefit the derivatives and claim fraud.

Judiyth

Expert:  Judith replied 1 year ago.

May I answer anything additional for you to earn your satisfaction. I strive to give good customer service and comprehensive answers. I feel I have failed you. Please tell me what additional information would be helpful.
Judith