The minor child and the opportunity for a ‘following to join’ visa

The process for petitioning minor children by green-card-holder parents is not as expeditious compared to petitions filed by US citizen parents.
Minor children of green-card holders fall under the second preference category and may be issued visas at a later time depending on the movement of priority dates. To avoid waiting for several years until the priority date becomes current, the minor children may travel to the United States by applying for the “following to join” visa.

How can a minor child apply for this visa and what are its limitations?
Jose, a lawful permanent resident, petitioned Mariana as a single daughter over 21 years old. Mariana is not married but she has two children David and Joanna from her live-in partner, Mark.
When Mariana’s visa became current, she immigrated to the US alone. The children remained in the Philippines to finish high school and stayed with Mark until Mariana was financially capable of supporting the children.
Mariana has been in the US for five years and wants her children, now ages 17 and 19, to come to the US. However, Jose recently passed away. Can the children still qualify as following-to-join derivatives on Mariana’s petition by her father, or does she need to file new petitions for her children?

Derivative children
In general, minor children of green-card holders under the age of 21 qualify as “derivative” children/beneficiaries and have the same priority date as the principal applicant or the person who was originally petitioned.
These derivative beneficiaries exist in cases where there is an original petition under any of the preference categories listing the children as beneficiaries of the principal applicant. Derivative means that the minor children are included in the principal applicant’s original petition. If the derivative children decide not to travel with their green-card-holder parent to the US within six months, they will be eligible for following-to-join benefits at a future time.

There is no time limit to following-to-join but there are specific instances that will bar them from receiving following-to-join visas as derivatives. If the child ages-out or marries before immigrating, the child is no longer eligible and the original applicant, now the green-card-holder parent, will need to file a new petition for the child and establish a new priority date.

The parent must remain a lawful permanent resident and must remain eligible for the same preference category in order for the children to be eligible for following-to-join benefits.

If the parent becomes a US citizen, the following-to-join benefits for the minor children are lost. Furthermore, if the parent entered the US as single, with minor children, and later marries before the children follow to join, the children are not eligible to immigrate because the principal beneficiary is no longer in the same preference category.

In Mariana’s case, her children still qualify as following-to-join derivative children despite the death of the petitioner because they are under the age of 21 and Mariana is still a lawful permanent resident and unmarried.
Even though Mariana’s father passed away, the children are eligible for following-to-join benefits because the factors establishing the benefits still exist. The option to apply for a “following to join” visa will always be a better option than refiling a fresh new petition under the second preference.