Married sons or daughters of U.S. citizens are not considered immediate relatives because Congress has determined that if they are married, they are not dependent on their parent(s). However, a U.S. citizen may petition them under the family third preference (F3) category. The spouse and children of a F3 beneficiary qualifies as derivative beneficiaries.
To qualify, the married son or daughter must have at some point met the legal definition of “child” when he/she was under the age of 21 under U.S. immigration law.
The beneficiary must have an approved immigrant petition (I-130) and wait for a visa number to become available before applying to adjust status in the U.S. or to obtain an immigrant visa abroad. Depending on the married son or daughter’s country of chargeability, the wait may be several years.
Common Situations that affect the F3 category:
Petitioner’s Death: If the U.S. citizen parent dies before the I-130 is approved, the petition is automatically cancelled. If the death takes place after the petition is approved, the beneficiary can find an alternative affidavit of support from a relative outside the immediate relative. The priority date is retained.
Beneficiary’s Death: If the married son or daughter dies, regardless of whether the petition has been approved, the petition is automatically cancelled. What this means is that the spouse and any unmarried children included as derivative beneficiaries on the petition will no longer be eligible for a green card.
Divorced / Widowed Beneficiary: If the beneficiary’s marriage comes to an end, either through divorce or death, after the petition has been approved and he/she is waiting for an immigrant visa number, the petition is upgraded to the F1 preference category, “unmarried son or daughter of U.S. citizen,” unless the beneficiary chooses to opt out.